Supervising chemist can testify in vehicular homicide if they independently
verified correctness of blood test results State v. Michaels
State
v. Julie L. Michaels (A-69-12) (072106)
[NOTE:
This is a companion case to State v. Reginald Roach, also filed today.]
Argued
March 4, 2014 -- Decided August 6, 2014
LaVECCHIA,
J., writing for a majority of the Court.
State v. Julie L. Michaels (A-69-12) (072106)
Decided August
6, 2014
LaVECCHIA, J., writing for a majority of the Court.
This appeal requires the Court to address whether defendant’s confrontation
rights were violated by the admission of a forensic report analyzing defendant’s
blood sample, where the report was admitted into evidence through the testimony
of the report’s author -- a laboratory supervisor and qualified expert who had
reviewed and certified the test results -- without the testimony of the various
individuals who had performed tasks associated with the testing procedures.
Defendant’s blood sample was sent by the local police department to NMS
Labs, a private laboratory that performs analytical testing for a number of
private and public entities. Fourteen NMS analysts were involved in various
aspects of handling and performing gas chromatography/mass spectrometry testing
on defendant’s blood sample. The testing indicated that defendant’s blood
sample contained cocaine, cocaine derivatives, and alprazolam, an active
ingredient in Xanax.
The testing of defendant’s blood sample produced approximately 950 pages of
data, which was provided to Dr. Barbieri, a forensic toxicologist and
pharmacologist who also held the titles of Assistant Laboratory Director and
Toxicology Technical Leader at NMS Labs. Dr. Barbieri reviewed all of the data
and then wrote, certified and signed a report, concluding that defendant’s
blood contained cocaine and alprazolam in such quantities that she would have
been impaired and unfit to operate a motor vehicle at the time the sample was
collected.
Defendant was indicted on multiple charges including second-degree
vehicular homicide while intoxicated and third-degree assault by auto while
intoxicated. At defendant’s trial, Dr. Barbieri testified about the general
processes used by NMS to analyze blood samples, the specific tests performed on
defendant’s blood, and the results of those tests. Dr. Barbieri acknowledged
that there is a “human element” to the testing procedures and that he had not
conducted the tests himself. However, he stated that he had reviewed the
voluminous machine-generated data and was satisfied that the testing had been
done properly and that his independent review permitted him to certify the
results. Dr. Barbieri opined that, at the time of the collision, defendant was
impaired by the quantity of alprazolam and cocaine found in her system, and
that she would have been unable to drive safely.
Defendant objected to the admission of Dr. Barbieri’s report as hearsay,
and the trial court found the report admissible. At the close of the State’s
case, defendant moved to strike Dr. Barbieri’s testimony, contending that the
State was required to present testimony from the persons who actually conducted
the blood sample testing. The trial court denied the motion, noting that as the
lab supervisor, Dr. Barbieri could testify about the procedures that were
employed and give an opinion, based on his expertise, as to what conclusions
should be drawn from that testing.
The jury found defendant guilty on all counts. Defendant moved for a new
trial, raising, among other arguments, a Sixth Amendment Confrontation Clause objection to Dr. Barbieri’s testimony. The court
denied the motion and sentenced defendant to an aggregate extended term of
eighteen years’ imprisonment with twelve years and two months of parole
ineligibility. Defendant appealed her convictions and sentence, casting her
arguments regarding Dr. Barbieri’s testimony as a violation of the
Confrontation Clause. The Appellate Division affirmed, and this Court granted
defendant’s petition for certification limited to the confrontation issue. 214 N.J.
114 (2013).
HELD: Defendant’s
confrontation rights were not violated by the admission of Dr. Barbieri’s
report or his testimony regarding the blood tests and his conclusions drawn
therefrom. Dr. Barbieri was knowledgeable about the testing process,
independently verified the correctness of the machine-tested processes and
results, and formed an independent conclusion about the results. Defendant’s
opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation
on the forensic evidence presented against her.
1. The Sixth Amendment to the United States Constitution provides in part that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” The United States Supreme Court’s current line
of cases on Confrontation Clause jurisprudence begins with Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004), which held that an accused’s right to confront witnesses applies
to all out-of-court statements that are “testimonial.” Under Crawford,
such statements are inadmissible unless the witness is unavailable to testify
and the defendant had a prior opportunity for cross-examination.
2. Since 2004, the United States Supreme Court has considered Crawford’s
application in three cases involving forensic reports—Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed.2d 610 (2011); and Williams v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L. Ed.2d 89 (2011). In Melendez-Diaz, supra, the Supreme Court reversed
a defendant’s conviction where the prosecution failed to produce any analyst to
support and be cross-examined regarding the statements contained in a forensic
document. In a five-to-four decision, the Court held that laboratory
certificates setting forth the results of analysis of drug samples were
testimonial statements and therefore were inadmissible. 557 U.S. at 311,
129 S. Ct. at 2532, 174 L. Ed. 2d at 322.
3. In Bullcoming, another five-to-four decision, the Supreme Court
considered “whether the Confrontation Clause permits the prosecution to
introduce a 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.” Bullcoming, supra,
564 U.S. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at
615-16. The Court held that the forensic report was inadmissible, reasoning
that the testimony of a substitute analyst who did not perform or observe the
tests and did not certify the results constituted “surrogate testimony” that
violated the defendant’s confrontation rights. Id. at __, 131 S. Ct.
at 2710, 180 L. Ed. 2d at 616. Justice Sotomayor wrote a separate
concurring opinion that emphasized the limited nature of the Court’s holding by
noting, among other points, that Melendez-Diaz did not stand for the
proposition that every person identified as performing some task in connection
with a forensic report must be called as a witness. Id. at __, 131 S.
Ct. at 2722, 180 L. Ed. 2d at 628-230 (Sotomayor, J.,
concurring).
4. Most recently, in Williams, a plurality of the Court found that a
defendant’s right of confrontation was not violated by the testimony of an
individual who matched a DNA profile produced by a private laboratory to the
defendant’s DNA. Williams, 567 U.S. at __, 132 S. Ct. at
2227, 183 L. Ed. 2d at 98. Notably, the plurality’s analysis was
criticized by a majority of the Court, including four dissenting members, id.
at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J.,
dissenting), and Justice Thomas, who joined in the plurality’s judgment, but
disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183 L.
Ed. 2d at 129 (Thomas, J., concurring in the judgment). Because each of the
Williams opinions embraces a different approach to determining whether
the use of forensic evidence violates the Confrontation Clause, and because a
majority of the Supreme Court expressly disagreed with the rationale of the
plurality, there is no narrow rule that this Court can discern from Williams
and thus Williams’s force, as precedent, is at best unclear. The Court
thus turns to the pre-Williams cases for more reliable guidance on
confrontation rights.
5. Applying pre-Williams jurisprudence, the Court observes that
neither Melendez-Diaz nor Bullcoming requires that every analyst
involved in a testing process must testify in order to admit a forensic report
into evidence and satisfy confrontation rights. Nor do the cases suggest that
the primary analyst involved in the original testing must testify when a
different, sufficiently knowledgeable expert is available to testify. Moreover,
the Court notes that it would take confrontation law to a level that is not
only impractical, but, equally importantly, is inconsistent with prior law
addressing the admissibility of an expert’s testimony in respect of the substance
of underlying information that he or she used in forming his or her opinion. By
way of background, the Court notes that, in determining when the facts
underlying a forensic expert opinion may be disclosed to the jury, New Jersey’s
evidence case law has focused on whether the witness is knowledgeable about the
particular information used in forming the opinion to which he or she is
testifying and has a means to verify the underlying information even if he or
she was not the primary creator of the data. Such law is consistent with the
principle that a knowledgeable expert who is someone
other than the primary analyst who conducted a forensic test may testify to
an opinion regarding testing results, when those results have been generated by
demonstrably calibrated instruments.
6. The Court then examines defendant’s argument that her confrontation
rights were violated by Dr. Barbieri’s testimony and the admission of his
certified report. Unlike in Melendez-Diaz, where no witness was offered
to testify to the statements contained in the forensic document that was
admitted into evidence, here the report was admitted through the live testimony
of Dr. Barbieri, the person who prepared, signed, and certified the report, and
Dr. Barbieri was available for cross-examination. In addition, the forensic
report that the Supreme Court rejected in Bullcoming had been admitted
through the testimony of a co-analyst or “surrogate” who did not serve as
supervisor or reviewer responsible for certifying the results. Here, the Court
accepts that Dr. Barbieri’s report was testimonial. However, Dr. Barbieri
supervised the analysts who performed the tests, was qualified as an expert in
the relevant subject areas, analyzed the machine-generated data, and produced
and certified the testimonial report in issue. As the reviewer of the testing
process and the author of the report, it was proper for Dr. Barbieri to testify
to its contents and to answer questions about the testing it reported.
7. In response to the dissenting opinion, the Court explains that Dr.
Barbieri was not merely repeating the findings and conclusions of the analysts
who conducted the testing. Rather, the findings and conclusions contained in
the report and to which he testified were his own. A truly independent reviewer
or supervisor of testing results can testify to those results and to his or her
conclusions about those results, without violating a defendant’s confrontation
rights, if the testifying witness is knowledgeable about the testing process,
has independently verified the correctness of the machine-tested process and
results, and has formed an independent conclusion about the results.
Testimonial facts can “belong” to more than one person if the verification and
truly independent review described above are performed and set forth on the
record by the testifying witness
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, DISSENTING, expresses the view that
the Sixth Amendment’s Confrontation Clause bars the admission of this forensic report and the
testimony of the expert because the State did not produce for cross-examination
the analyst(s) who actually performed the test on defendant’s blood.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON and
FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join
in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting
opinion.
SUPREME COURT OF NEW JERSEY
A- 69 September Term 2012
072106
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS a/k/a LYNN MICHAELS, JULIE LYNN,
JOLINE BROOKS, JODIE L. CALLOWAY, JODIE CALLAWAY,
Defendant-Appellant.
Argued March 4, 2014 – Decided August 6, 2014
On certification to the Superior Court, Appellate
Division.
Gary A. Kraemer argued the cause for
appellant (Daggett, Kraemer & Gjelsvik, attorneys; Mr. Kraemer
and George T. Daggett, on the briefs).
Frank Muroski, Deputy Attorney
General, argued the cause for respondent (John J. Hoffman, Acting
Attorney General of New Jersey, attorney; Kenneth A. Burden and Frank
J. Ducoat, Deputies Attorney General, of counsel; Mr. Muroski, Mr.
Burden, and Mr. Ducoat, on the briefs).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Defendant Julie Michaels was charged with second-degree vehicular homicide,
third-degree assault by auto, and four other related charges, as well as motor
vehicle citations, including driving while intoxicated, reckless driving,
possession of a controlled dangerous substance in a motor vehicle, and
possession of an open container of alcohol. Laboratory results of gas
chromatography/mass spectrometry tests performed on defendant’s blood sample,
which was drawn at a hospital the evening of her motor vehicle accident,
revealed the presence of cocaine, alprazolam (an active ingredient of Xanax),
and benzoethylene (a cocaine metabolite).
At trial, the State introduced testimony from Edward Barbieri, Ph.D., an
assistant supervisor and toxicology technical leader from the private
laboratory that had performed the testing on defendant’s blood sample and
issued a report certifying the test results. Dr. Barbieri was responsible for
supervising the technicians and analysts who were involved in the gas chromatography/mass
spectrometry testing. He also was responsible for their adherence to the
laboratory’s policies and protocols for the testing procedures. He had reviewed
the test results and satisfied himself that the test data accurately identified
and quantified the substances found in defendant’s blood, and he had signed and
certified the laboratory results set forth in the report. Over defendant’s
objection, the report was admitted into evidence without the testimony of the
fourteen individuals who had performed various tasks associated with the
testing procedures. A jury convicted defendant on all counts, and the Appellate
Division affirmed defendant’s conviction.
We granted certification in this matter to consider defendant’s argument
that her Sixth Amendment confrontation rights were violated because the laboratory report was
admitted, although defendant had not had the opportunity to confront each
laboratory employee who participated in the testing that generated the results
contained in the report. We now hold that the admission of the laboratory
report did not violate defendant’s confrontation rights. The laboratory
supervisor -- who testified and was available for cross-examination -- was
knowledgeable about the testing process that he was responsible for
supervising. He had reviewed the machine-generated data from the testing, had
determined that the results demonstrated that defendant had certain drugs
present in her system, and had certified the results in a report that he had
prepared and signed.
We recognize that the forensic report in issue is “testimonial” and that it
is the type of document subject to the Confrontation Clause. See Bullcoming
v. New Mexico, 564 U.S. __, __, 131 S. Ct. 2705, 2717, 180 L. Ed.2d 610, 624 (2011) (determining that signed and certified laboratory report was
formalized sufficiently to be characterized as testimonial); cf. State
v. Sweet, 195 N.J. 357, 373-74 (2008) (noting testimonial nature of signed and certified New
Jersey State Laboratory certificates prepared for use in State prosecution), cert.
denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed.2d 601 (2009). However, in this matter we join the many courts that have
concluded that a defendant’s confrontation rights are not violated if a
forensic report is admitted at trial and only the supervisor/reviewer testifies
and is available for cross-examination, when the supervisor is knowledgeable
about the testing process, reviews scientific testing data produced, concludes
that the data indicates the presence of drugs, and prepares, certifies, and
signs a report setting forth the results of the testing. In examining the
testimony and documentary evidence challenged in this matter, we do not find it
to be equivalent to the “surrogate testimony” that the United States Supreme
Court found problematic in Bullcoming, supra, 564 U.S. at
__, 131 S. Ct. at 2715-16, 180 L. Ed. 2d at 621-22.
Finding no denial of defendant’s confrontation rights in this proceeding,
we affirm defendant’s conviction.
I.
A.
On March 3, 2008, at approximately 10:15 p.m., defendant caused a two-car
collision. Danielo Diaz, the driver of the second car, was driving northbound
on Route 23 in Hardyston Township. There, Route 23 is a two-lane road with a
double yellow center line and a speed limit of forty-five miles per hour.
Defendant was driving southbound but swerved into the northbound lane as she
reached the crest of a hill. Diaz testified that he saw headlights approaching
on his side of the road, but had no time to react before defendant’s vehicle
struck his vehicle head-on.
Sergeant John Broderick, the police officer responding to the scene, found
defendant’s car straddling the yellow line facing southbound. Diaz’s car was
situated perpendicular to defendant’s. Diaz and his passenger, Dylan
Vecchiarelli, appeared to be injured and in pain. Defendant, who was slumped in
her seat, answered Broderick’s questions in a slurred voice. Her eyes were
partly closed. When she exited her vehicle, she did not seem to be in pain
although her ankle appeared to Broderick to be broken. Defendant seemed to
Broderick to be under the influence of drugs or alcohol.
Defendant was taken by ambulance to St. Clare’s Hospital in Sussex County
where she was met by Detective Karl Ludwig, who had been dispatched to obtain a
blood sample from her. Although defendant initially informed Ludwig that she
was Jodie Callaway of Moscow, Iowa, it was later determined that she was Julie
Michaels of Wayne, New Jersey, and that Jodie Callaway was her sister. When
asked what had happened, defendant told Ludwig that she had been on the wrong
side of the road and hit a car. Ludwig noted that defendant’s eyes were red and
droopy, her speech was slurred, and she was lethargic. Defendant gave
permission for blood samples to be taken but would not sign the consent form.
She informed Ludwig that she had not used any alcohol that night, but had taken
prescription Xanax at 3:00 p.m. She also stated that her blood would test
positive for cocaine because she had used it four days earlier. Defendant later
altered her statement, telling Ludwig that, on the night of the accident, she
had taken Xanax that belonged to her sister and had used cocaine.
Meanwhile, Diaz and Vecchiarelli were transported by helicopter from the
scene of the accident to a trauma hospital. Diaz remained in the hospital for
about a month for injuries that included a fractured cheekbone and nose, a
broken femur with an open wound, and bruised lungs. Vecchiarelli’s injuries
included multiple fractures of the skull, a spinal cord fracture, a partial
rupture of the thoracic aorta, lacerations of the spleen, and a broken femur.
Despite weeks of intensive treatment for his serious injuries, Vecchiarelli’s
condition deteriorated. He died from his injuries on April 2, 2008.
Defendant’s blood sample was sent by the Hardyston Police Department to NMS
Labs, a private laboratory in Willow Grove, Pennsylvania, that performs
analytical testing for a number of private and public entities. NMS was
instructed to test the sample for the presence of alcohol and drugs, and to
determine the quantities of any substances found. Tests were performed by
approximately fourteen NMS analysts.1
Specifically, small samples, or aliquots, drawn from the original sample were
screened for alcohol and a broad range of drugs. Computer analysis of the
results of the screening tests indicated presumptive positives for cocaine
metabolites, benzodiazepines, and marijuana products. New aliquots from the
blood sample were analyzed using a combined gas chromatography/mass
spectrometry machine.2 That
testing showed that defendant’s blood sample contained cocaine, benzoethylene
(a cocaine metabolite), and alprazolam (a type of benzodiazepine that is the
active ingredient in Xanax). Defendant’s blood tested negative for marijuana.
The testing of defendant’s blood sample produced approximately 950 pages of
data, which was provided to Dr. Barbieri, a forensic toxicologist and pharmacologist
who held three titles at NMS: Forensic Toxicologist, Toxicology Technical
Leader, and Assistant Laboratory Director. Dr. Barbieri reviewed all the data
in order to satisfy himself that (1) the testing had been done according to
standard operating procedures, and (2) the results were correct. Dr. Barbieri
wrote, and then certified and signed, a report stating that defendant’s blood
contained 270 ng/mL of alprazalam, 140 ng/mL of cocaine, and 2500 ng/mL of
benzoethylene. Dr. Barbieri’s report concluded that the presence of those
quantities of drugs in defendant’s blood would have caused her to be impaired
and unfit to operate a motor vehicle at the time the blood sample was
collected.
B.
In October 2008, defendant was indicted on charges of second-degree
vehicular homicide while intoxicated, N.J.S.A. 39:4-50, N.J.S.A.
2C:11-5 (count one); third-degree assault by auto while intoxicated, N.J.S.A.
39:4-50, N.J.S.A. 2C:12-1(c)(2) (count two); third-degree causing death
while driving unlicensed or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A.
2C:40-22(a) (count three); fourth-degree causing serious bodily injury while
driving unlicensed or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A.
2C:40-22(a) (count four); third-degree giving false information to a law
enforcement officer, N.J.S.A. 2C:29-3(b)(4) (count five); and
third-degree possession of a controlled dangerous substance, N.J.S.A.
2C:35-10(a) (count six). Defendant also previously had been issued six motor
vehicle citations in connection with the collision.3
Defendant’s in limine motions to dismiss the indictment were denied. The
case was tried over fourteen days in February and March 2011. The State
presented testimony from Diaz, two other drivers who had observed the collision
and defendant’s driving, several police officers including Broderick and
Ludwig, the doctor who had treated Vecchiarelli prior to his death, the
supervising nurse who had treated defendant upon her arrival at the hospital
and who had drawn the blood sample, and Dr. Barbieri of NMS.4 Defendant presented two witnesses but did
not testify on her own behalf.
Dr. Barbieri testified about the general processes used by NMS to analyze
blood samples, the specific tests performed on defendant’s blood, and the
results of those tests. Dr. Barbieri acknowledged that there is a “human
element” to the testing procedures and that he had not conducted the tests
himself. However, he stated that he personally had reviewed the voluminous
machine-generated data and was satisfied that the testing had been done
properly and that his independent review permitted him to certify the results.
Dr. Barbieri opined that, at the time of the collision, defendant’s
concentration, judgment, response time, coordination, and sense of caution
would have been impaired by the quantity of alprazalam and cocaine found in her
system, and that she would have been unable to drive safely.
Defendant objected to the admission of Dr. Barbieri’s report as hearsay;
however, the trial court determined that no applicable law compelled its
exclusion. At the close of the State’s case, defendant moved to strike Dr.
Barbieri’s testimony, contending that the State was required to present
testimony from the persons who actually conducted the testing and that Dr.
Barbieri did not personally perform, or assist in performing, the tests that
formed the basis of his report and testimony. The trial court denied the motion
to strike Dr. Barbieri’s testimony, specifically noting that, “as the
supervisor of the lab, certainly he’s in a position to testify about the
procedures that were employed and give an opinion, based on his expertise, what
conclusions should flow from that testing.” The trial court also denied a
motion for a judgment of acquittal on counts one and three on the ground that
there was insufficient proof of Vecchiarelli’s cause of death.
The jury found defendant guilty on all counts. The court denied defendant’s
motion for a new trial, which raised, among other arguments, a Sixth Amendment Confrontation Clause objection to the testimony by Dr. Barbieri. The court
sentenced defendant to an aggregate extended term of eighteen years’
imprisonment with twelve years and two months of parole ineligibility, and
life-time suspension of driving privileges.
Defendant appealed on the grounds that the trial court should have excluded
testimony by Dr. Barbieri and by Vecchiarelli’s physician, as well as certain
inculpatory statements by defendant. She also argued that her sentence was
excessive. The Appellate Division affirmed the conviction and sentence in an
unpublished opinion.
Addressing the argument that Dr. Barbieri’s testimony violated defendant’s
confrontation rights, the Appellate Division reviewed recent Confrontation
Clause cases from the United States Supreme Court, as well as its own published
opinion in State v. Rehmann, 419 N.J. Super. 451 (App. Div. 2011). The panel held that Dr. Barbieri’s testimony did not
violate defendant’s confrontation rights because Dr. Barbieri, who was trained
to perform the tests, made an independent assessment of data collected by the
analysts he supervised, testified about the process by which samples are tested
and the tests performed on defendant’s blood, and explained the test results.
The panel noted that no questions about testing procedures or results were
asked on cross-examination that Dr. Barbieri was not able to answer fully, and
concluded that defendant was not denied a meaningful opportunity for
cross-examination merely because Dr. Barbieri personally had not performed the
tests. In addition, the panel noted that, under N.J.R.E. 703, Dr.
Barbieri, who was properly qualified as an expert, could rely on inadmissible
hearsay evidence in forming his independent opinion. The panel concluded that the
trial court’s other rulings were correct and that defendant’s sentence was not
excessive.
We granted defendant’s petition for certification, “limited to the issue of
whether defendant’s right of confrontation was violated by the admission of the
expert testimony and report regarding the results of the laboratory analysis of
defendant’s blood samples.” State v. Michaels, 214 N.J. 114, 114 (2013).
II.
A.
Defendant argues that the admission of Dr. Barbieri’s report and testimony
violated the Confrontation Clause because Dr. Barbieri was not the person who
performed the tests conducted on her blood sample. She asserts that the test
results, data, and charts contained in the report are testimonial because the
testing was done to produce evidence for trial, as shown by the fact that the
report was sent to the Sussex County Prosecutor’s Office and references “State
v. Julie Michaels” as its subject matter. Based on the United States Supreme
Court’s decision in Bullcoming, defendant argues that the analysts who
performed the tests should have been subject to cross-examination because there
was a possibility of human error in the testing and their duties involved more
than simply transcribing machine-produced data. In particular, defendant notes
that, although Dr. Barbieri certified in his report that the samples and seals
had maintained their integrity, only the analysts who worked with the samples
could have ensured that that was the case.
Defendant emphasizes that, unlike the supervisor in Rehmann, supra,
419 N.J. Super. at 457-59, whose testimony about test results the
Appellate Division held was permissible, Dr. Barbieri was not closely and
directly involved with the testing on which he based his report. Defendant also
asserts that the State improperly failed to notify her before trial that Dr.
Barbieri was not the person who performed the tests, thus depriving her of her
right to depose the person who performed the tests used against her if that
person was not going to be available to testify at trial.
In response to the State’s argument that defendant waived her Confrontation
Clause argument by failing to raise the issue before or during trial, defendant
asserts that she preserved her confrontation claim by objecting to the
testimony and report at trial as unreliable hearsay evidence. Defendant also
argues that the “notice and demand” procedure of N.J.S.A. 2C:35-19 does
not justify introduction of Dr. Barbieri’s report because that statute only
applies to State Forensic Laboratories, not to private laboratories like NMS.
B.
The State first argues that defendant waived her Confrontation Clause
argument by objecting to Dr. Barbieri’s report only on hearsay grounds at
trial. The State asserts that the raw data provided to defendant during
discovery put defendant on notice that the tests were not conducted by Dr.
Barbieri himself. The State frames defendant’s decision not to challenge Dr.
Barbieri’s testimony on Confrontation Clause grounds as a strategic decision
with which she must live. The State also asserts that, under N.J.R.E.
703, Dr. Barbieri was allowed to rely on otherwise inadmissible hearsay
statements, like the raw data in this case, to form the independent opinion
expressed in his report and testimony. Therefore, the underlying data was
admissible to establish the basis for his opinion.
Turning to the merits of defendant’s Confrontation Clause argument, the
State argues that Dr. Barbieri’s testimony did not violate defendant’s
confrontation rights because Dr. Barbieri was the one who reviewed the raw
data, produced the report based on his professional evaluation of the data, and
formally certified the accuracy of the results. He thus was the author of the
testimonial statements against defendant, and defendant was given an
opportunity to cross-examine him at trial in respect of those statements. The
State also contends that denying defendant an opportunity to confront the
analysts who conducted the tests did not violate her Confrontation Clause
rights because the data produced by those analysts was not testimonial. The
State argues that the test results were not testimonial because they were
machine generated and were not formalized, sworn, or certified documents.
Further, the State asserts that the results were not testimonial because the
analysts performing the tests conducted them according to standard procedures
and without any knowledge of the origin of the samples or the purpose for which
the results were being obtained. The State points out that, although NMS
conducts testing for law enforcement clients, it also conducts testing for
clients such as coroners, physicians, and drug treatment facilities operating
outside of the realm of law enforcement.
Finally, the State urges this Court to adopt a “workable rule,” given the
nature of modern laboratory work, where a number of different individuals may
be involved in the procedures necessary to produce a test result and who may
recall little about any particular test. In arguing for practicality, the State
argues that this Court should examine the evidence closely and avoid rigidly
requiring the testimony of every laboratory analyst and assistant in any way
connected with whatever testing is involved in a particular forensic laboratory
report.
III.
The Sixth Amendment to the United States Constitution provides in part that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.”5
The Clause is applicable to the States by virtue of the Fourteenth Amendment. See
Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed.2d 923, 926 (1965).
This appeal requires that we address whether admission of a particular
forensic report violates defendant’s confrontation rights where the fourteen
analysts who were involved in the testing utilized in the certified report were
not individually called to testify at trial. The question is made difficult by
the differing analyses used by United States Supreme Court justices in
contemporary Confrontation Clause jurisprudence. We therefore begin with the
Supreme Court’s decisions on the subject.
A.
Prior to the current turmoil over confrontation rights, the Supreme Court
had held that the Confrontation Clause allowed admission of an out-of-court
statement if the statement fit “within a firmly rooted hearsay exception” or
bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed.2d 597, 608 (1980) (explaining that if statement “bears adequate indicia of
reliability,” Confrontation Clause does not bar admission of unavailable
witness’s statement against criminal defendant). That understanding was upended
twenty-four years later when the Supreme Court rejected the Roberts
reliability analysis and held that an accused’s right to confront witnesses
applies to all out-of-court statements that are “testimonial.” Crawford v.
Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed.2d 177, 203 (2004).
In Crawford, Justice Scalia, writing for the Court, examined the
confrontation right’s English common law and statutory roots, and its development
in the American colonies leading to its inclusion in the Federal Constitution,
and concluded that the Confrontation Clause was directed at “the civil-law mode
of criminal procedure, and particularly its use of ex parte examinations
as evidence against the accused.” Id. at 50, 124 S. Ct. at 1363,
158 L. Ed. 2d at 192. Based on its historical analysis, the Crawford
Court concluded “that the Framers would not have allowed admission of
testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” Id. at 53-54, 124 S. Ct. at 1365, 158 L.
Ed. 2d at 194. In other words, “[w]here testimonial evidence is at issue .
. . the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Id. at 68, 124 S. Ct. at
1374, 158 L. Ed. 2d at 203.
Although Crawford’s analysis hinged on whether the out-of-court
statement was testimonial, the Court did not define “testimonial statements.” Ibid.
However, the Crawford decision identified certain “formulations of [the]
core class of ‘testimonial’ statements,” such as
ex parte in-court testimony or
its functional equivalent -- that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine,
or similar pretrial statements that declarants would reasonably expect to be
used prosecutorially; extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
confessions; [and] statements that were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.
[Id. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at
193 (first alteration in original) (citations and internal quotation marks
omitted).]
Importantly, whether a statement is “testimonial” was not pinned to whether
the statement was taken under oath. Id. at 52, 124 S. Ct. at
1364, 158 L. Ed. 2d at 193 (noting that unsworn “[s]tatements taken by
police officers in the course of interrogations are also testimonial [because
those] interrogations bear a striking resemblance to examinations by justices
of the peace in England”).
A three-part test -- whether the statement was testimonial, whether the
witness was unavailable to testify, and whether there was a prior opportunity
for cross-examination -- thus became Crawford’s new standard for
assessing violations of the Confrontation Clause. Id. at 68, 124 S.
Ct. at 1374, 158 L. Ed. 2d at 203. Justices Stevens, Kennedy,
Souter, Thomas, Ginsburg, and Breyer joined Justice Scalia’s exposition of the
new standard, and the earlier Roberts decision was overruled.6 Id. at 63-69, 124 S. Ct. at
1371-74, 158 L. Ed.2d 200-03; see also Davis v. Washington, 547 U.S 813, 825 n.4, 126 S. Ct. 2266, 2275 n.4, 165 L. Ed. 224, 239 n.4 (2006) (“We overruled Roberts in Crawford by
restoring the unavailability and cross-examination requirements.”). Applying
the standard to the facts in Crawford, supra, the Court held that
a tape-recorded statement made by the defendant’s wife during police
interrogation was testimonial, and its admission, without providing the
defendant the right to cross-examine her, violated the Confrontation Clause.
541 U.S. at 38, 69, 124 S. Ct. at 1356-57, 1374, 158 L. Ed. 2d
at 184, 203.
B.
Since 2004, the Court has considered Crawford’s application in three
cases involving forensic reports. Those cases are Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.2d 314 (2009); Bullcoming, supra, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed.2d 610; and Williams v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L. Ed.2d 89 (2011).
1.
In Melendez-Diaz, supra, a cocaine distribution and
trafficking case, a Massachusetts trial court admitted into evidence three
“certificates of analysis” setting forth the results of forensic analysis
performed by the state laboratory. 557 U.S. at 308, 129 S. Ct. at
2531, 174 L. Ed. 2d at 320. Under state law, the notarized certificates
were admissible without live testimony as “prima facie evidence of the
composition, quality, and the net weight of the narcotic.” Id. at 309,
129 S. Ct. at 2531, 174 L. Ed. 2d at 320. Thus, the analysts were
not produced as witnesses at defendant’s trial; therefore, the defendant was
not afforded the opportunity to cross-examine the individuals who performed the
tests and certified the results. Ibid. A Massachusetts appellate court
affirmed the conviction, and the Supreme Judicial Court of Massachusetts denied
review. Ibid.
The United States Supreme Court reversed the
conviction, in a five-to-four decision, holding that the laboratory certificates fell “within the ‘core
class of testimonial statements’” and therefore were inadmissible. Id.
at 310, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford,
supra, 541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L.
Ed. 2d at 193). The majority opinion,
authored by Justice Scalia and joined by Justices Stevens, Souter, and
Ginsburg, reaffirmed the Crawford test for testimonial statements and
employed that test. Id. at 310-11, 129 S.
Ct. at 2532, 174 L. Ed. 2d at 321. The Court determined that the lab reports were
“plainly affidavits” that constituted testimonial statements because they were
“declaration[s] of facts written down and sworn to by the declarant before an
officer authorized to administer oaths”; “solemn declaration[s] or
affirmation[s] made for the purpose of establishing or proving some fact”;
“made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial”; and
“functionally identical to live, in-court testimony, doing precisely what a
witness does on direct examination.” Ibid.
(first alteration in original) (internal quotation marks omitted). The Court
determined that the analysts constituted witnesses against the defendant, and
held that, absent the state’s showing that they were unavailable to testify at
trial and that the defendant had prior
opportunity to cross-examine them, the defendant was entitled to “be confronted
with the analysts at trial.” Id. at 311,
129 S. Ct. at 2532, 174 L. Ed. 2d at 322 (internal quotation marks
omitted).
Justice Thomas signed on to the majority
opinion, but wrote separately to express his position that “the Confrontation
Clause is implicated by extrajudicial statements only insofar as they are
contained in formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions.” Id. at
329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas, J., concurring)
(internal quotation marks omitted). He thus continued to adhere to the narrow
view of testimonial documents that he first expressed in his concurrence in White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 747, 116 L. Ed.2d 848, 865 (1992) (Thomas, J., concurring).
In a dissent by Justice Kennedy, in which Chief Justice Roberts and
Justices Breyer and Alito joined, those four members declined to follow the
analytic path that the majority opinion was cutting for confrontation
jurisprudence as applied to forensic documents. Id.
at 330, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Kennedy, J., dissenting).
The dissent asserted that the Confrontation Clause was not implicated because
laboratory analysts are not “conventional” witnesses against a defendant,
positing that the majority “swe[pt] away an accepted rule governing the
admission of scientific evidence.” Ibid.
Justice Kennedy wrote, “The immediate systemic concern is that the Court makes
no attempt to acknowledge the real differences between laboratory analysts who
perform scientific tests and other, more conventional witnesses -- ‘witnesses’
being the word the Framers used in the Confrontation Clause.” Ibid. In his view, “[l]aboratory analysts
who conduct routine scientific tests are not the kind of conventional witnesses
to whom the Confrontation Clause refers.” Id.
at 357, 129 S. Ct. at 2558, 174 L. Ed. 2d at 350. The dissent characterized
the laboratory analysts as impartial, technical witnesses, not persons
adversarial to the defendant, and concluded that no confrontation violation
arose from admission of the laboratory certificates. Id. at 345-46, 129 S. Ct. at
2251-52, 174 L. Ed. 2d at 342-43.
2.
In 2011, in Bullcoming, supra, another five-to-four decision, the
Supreme Court considered “whether the Confrontation Clause permits the
prosecution to introduce a 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.” 564 U.S. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d
at 615-16. The defendant was arrested and charged with driving while
intoxicated in New Mexico; after obtaining a sample of the defendant’s blood,
police investigators forwarded the sample to the New Mexico Department of
Health, Scientific Laboratory Division (SLD). Id.
at __, 131 S. Ct. at 2709-10, 180 L. Ed. 2d at 616. Analysts at SLD used gas
chromatography machines to identify and quantify blood alcohol concentration
levels. Id. at __, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617. The results of the defendant’s blood alcohol
analysis were recorded onto “a standard SLD form titled ‘Report of Blood
Alcohol Analysis.’” Id. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. The form included a section for identification
of the “participants in the testing,” and a section where “the forensic analyst
certified his finding.” Ibid. In
particular, the SLD report contained the following: information from the police
officer (reason for the arrest, and date/time blood was drawn); the
“‘certificate of analyst,’ completed and signed by Curtis Caylor, the SLD
forensic analyst assigned to test [the defendant’s] blood sample,” which
included an affirmation that the “sample was received intact” and proper
procedures were followed; the blood alcohol concentration; and a certification
that the forensic analyst was qualified to conduct the test. Id. at __, 131 S. Ct. at 2710-11, 180 L. Ed. 2d
at 616-17. There also was a section where “the SLD examiner who reviewed
Caylor’s analysis certified that Caylor was qualified to conduct the BAC test,
and that the ‘established procedure’ for handling and analyzing [the] sample
‘ha[d] been followed.’” Id. at __, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617 (final alteration in original).
At trial, “the State announced that it would not be calling SLD analyst
Curtis Caylor as a witness.” Id. at __,
131 S. Ct. at 2711, 180 L. Ed. 2d at 618. The trial court admitted
the blood report as a business record, over defense counsel’s objection, during
the testimony of “an SLD scientist who had neither observed nor reviewed
Caylor’s analysis.” Id. at __, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. The defendant was convicted, and the state
appellate court and state supreme court each affirmed the conviction. Id. at __, 131 S. Ct. at 2712-13, 180 L. Ed. 2d
at 618-19. Specifically, the state supreme court, while acknowledging that the
report was testimonial, concluded that the substitute analyst served as a
surrogate witness, such that there was no violation of the defendant’s right of
confrontation. Id. at __, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619.
The Supreme Court reversed and held, in an opinion by Justice Ginsberg,
that “surrogate testimony of that order does not meet the constitutional
requirement” of confrontation. Id. at __,
131 S. Ct. at 2710, 180 L. Ed. 2d at 616. The Court’s holding was
joined by Justices Scalia, Thomas, Sotomayor, and Kagan.
Justice Ginsburg first found that the forensic report in issue was
testimonial by analogizing the report to the certifications in Melendez-Diaz and underscoring the
similarities: “[l]ike the analysts in Melendez-Diaz,
analyst Caylor tested the evidence and prepared a certificate concerning the
result of his analysis”; and “[l]ike the Melendez-Diaz
certificates, Caylor’s certificate is ‘formalized’ in a signed document, headed
a ‘report.’” Id. at __, 131 S. Ct. at 2717, 180 L. Ed. 2d at 624 (citations omitted). Notwithstanding that
Caylor’s SLD report was not notarized, it was determined that the formalities
of the report sufficed to render its contents testimonial. Ibid.
The opinion then addressed whether the surrogate witness satisfied the
Confrontation Clause requirements. Id. at
__, 131 S. Ct. at 2714-16, 180 L. Ed. 2d at 620-23. Justice Ginsberg noted
that Caylor’s representations in the SLD report (that the blood sample was
intact, that proper procedures were followed, and that the analysis was valid)
were proper subjects for cross-examination. Id.
at __, 131 S. Ct. at 2714, 180 L. Ed. 2d at 620-21. With cross-examination
concerns in mind, the Court concluded that the surrogate witness did not
satisfy the defendant’s confrontation rights because the surrogate’s testimony
“could not convey what Caylor knew or observed about the events his
certification concerned, i.e., the
particular test and testing process he employed.” Id. at __, 131 S. Ct. at
2715, 180 L. Ed. 2d at 622 (footnote
omitted). Simply put, the surrogate did not certify the report or perform or
observe the tests and, therefore, cross-examination of the surrogate would not
satisfy the defendant’s confrontation rights.
Justice Scalia joined the majority opinion in full, including Part IV,
which addressed and dismissed concerns that were voiced by parties and the
dissent about the undue testimonial burdens that would be placed on forensic
analysts when the Court’s holding was applied to the many situations where
multiple participants are involved in forensic testing, and the retesting of
laboratory samples that seemingly would be necessitated in the holding’s wake. Id. at __, 131 S. Ct. at 2717-19, 180 L. Ed. 2d
at 624-26.
Part IV is unusual in that only
Justice Scalia joined in that part of the opinion. Neither Justice Ginsberg nor
any of the other justices who joined her opinion adopted that section’s dismissal
of the practical concerns implicated by the holding’s direction for forensic
reports. In addition, Justices Thomas and Ginsberg did not join in footnote six
of the opinion, which reviewed the “primary purpose” analysis used in the
appeal to determine whether the SLD document involved testimonial statements. Id. at __ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed.
2d at 620 n.6.7
Justice Sotomayor also wrote a separate concurring opinion that emphasized
the limited nature of the Court’s holding. Id.
at __, 131 S. Ct. at 2719, 180 L. Ed. 2d at 626 (Sotomayor, J.,
concurring). Her concurrence highlighted factual circumstances that were not
presented in Bullcoming:
First, this is not a case in which the State suggested
an alternate purpose, much less an alternate primary
purpose, for the [SLD] report. . . .
Second, this is not a case in which the person
testifying is a supervisor, reviewer, or someone else with a personal, albeit
limited, connection to the scientific test at issue. . . . It would be a different
case if, for example, a supervisor who observed an analyst conducting a test
testified about the results or a report about such results. We need not address
what degree of involvement is sufficient because here [the surrogate who
testified] had no involvement whatsoever in the relevant test and report.
Third, this is not a case in which an expert witness
was asked for his independent opinion about underlying testimonial reports that
were not themselves admitted into evidence. See
Fed. Rule Evid. 703 (explaining that
facts or data of a type upon which experts in the field would reasonably rely
in forming an opinion need not be admissible in order for the expert’s opinion
based on the facts and data to be admitted). As the Court notes, ante, at ___, 180 L. Ed. 2d at 622, the State does not assert that [the surrogate]
offered an independent, expert opinion about Bullcoming’s blood alcohol
concentration. Rather, the State explains, “[a]side from reading a report that
was introduced as an exhibit, [the surrogate] offered no opinion about
[Bullcoming’s] blood alcohol content . . . .” . . . We would face a different
question if asked to determine the constitutionality of allowing an expert
witness to discuss others’ testimonial statements if the testimonial statements
were not themselves admitted as evidence.
Finally, this is not a case in which the State
introduced only machine-generated results, such as a printout from a gas
chromatograph. . . . [W]e do not decide whether . . . a State could introduce
(assuming an adequate chain of custody foundation) raw data generated by a
machine in conjunction with the testimony of an expert witness.
[Id. at ___, 131
S. Ct. at 2722, 180 L. Ed. 2d at 628-30 (Sotomayor, J., concurring).]
In making those important points, Justice Sotomayor’s opinion foreshadowed
many of the questions that courts such as ours have had to wrestle with in the
wake of the Supreme Court’s contemporary Confrontation Clause cases. See, e.g., Marshall
v. People, 309 P.3d 943, 947-48 (Colo.
2013) (listing cases that have addressed just “[the] question of whether
supervisor testimony satisfies the Confrontation Clause when the supervisor
prepares or signs the report”), cert. denied,
82 U.S.L.W. 3685 (U.S. May 27, 2014). Importantly, she returned the discussion in Bullcoming to the notable point that Melendez-Diaz, in addressing a circumstance
in which there was a failure to call any witnesses at all in connection with
the forensic report in issue, did not stand for the proposition that every
person identified as performing some task in connection with a forensic report
must be called as a witness.
[N]ot . . . every person noted on the [SLD] report
must testify. As . . . explained in Melendez-Diaz,
it 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. at __ n.2,
131 S. Ct. at 2721 n.2, 180 L. Ed. 2d at 627 n.2 (internal quotation
marks omitted).]
Justice Sotomayor’s separate opinion has helped curb the belief that Bullcoming stands for the proposition that
forensic reports require, for their admission, the testimony of all analysts
involved in the handling and testing of a sample used in any forensic analysis.
See, e.g., Ware
v. State, __ So.3d __, __ (Ala. 2014)
(slip op. at 16); Jenkins v. State, 102 So.3d 1063, 1066 (Miss.
2012), cert. denied, __ U.S. __, 133 S. Ct. 2856, 186 L. Ed.2d 914 (2013); State v. Eagle, 835 N.W.2d 886, 898 (S.D.
2013).
Notably, there also was a dissent in Bullcoming,
supra, authored by Justice Kennedy and
joined by Chief Justice Roberts, Justice Breyer and Justice Alito, that
expressed disagreement with “the new and serious misstep of extending [Melendez-Diaz’s] holding to instances like
this one.” 564 U.S. at __, 131 S. Ct. at 2723, 180 L. Ed. 2d at 630 (Kennedy, J., dissenting). Building on his
dissent in Melendez-Diaz, Justice Kennedy
focused on “[a]dditional reasons, applicable to the extension of that doctrine
and to the new ruling in this case,” for his objection to the majority’s
confrontation theory. Ibid. He termed
“requiring the State to call the technician who filled out a form and recorded
the results of a test . . . a hollow formality.” Id.
at __, 131 S. Ct. at 2724, 180 L. Ed. 2d at 632. He pointed to the varying
principles that “have weaved in and out of the Crawford
jurisprudence,” and expressed serious reservations about the rationale employed
by the majority: “That the Court in the wake of Crawford
has had such trouble fashioning a clear vision of that case’s meaning is
unsettling . . . .” Id. at
__, 131 S. Ct. at 2725-26, 180 L. Ed. 2d at 632-33. The dissent concluded
with a strong call to reexamine the Court’s Confrontation Clause jurisprudence:
Seven years after its initiation, it bears remembering
that the Crawford approach was not
preordained. This Court’s missteps have produced an interpretation of the word
“witness” at odds with its meaning elsewhere in the Constitution . . . and at
odds with the sound administration of justice. It is time to return to solid
ground.
[Id. at __, 131 S. Ct. at 2728, 180 L. Ed. 2d at 636 (citation omitted).]
3.
Most recently, the Supreme Court issued Williams,
supra, a case involving a DNA profile
produced by a private laboratory, Cellmark. The profile was discussed in
testimony by a police analyst who matched it to the defendant’s DNA. 567 U.S. at __, 132 S. Ct. at 2227, 183 L. Ed. 2d
at 98. The analyst used information from a DNA profile created from crime scene
samples by another analyst in rendering her opinion that that profile matched
the DNA profile that she herself had created from the defendant’s buccal swab. Id. at __, 132 S. Ct. at 2240, 2243-44, 183 L.
Ed. 2d at 112, 115-16. A plurality opinion by Justice Alito, joined by
Chief Justice Roberts and Justices Kennedy and Breyer, set forth several
rationales for concluding that the defendant’s right of confrontation was not
violated by the testimony. We refer to this as the plurality opinion, although
the analysis is criticized by a majority of the Court, see id. at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J., dissenting), including Justice
Thomas, who joined in the judgment but disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d
at 129 (Thomas, J., concurring).
Two key analyses are set forth in Justice Alito’s opinion. Justice Alito
first reasoned that “[o]ut-of-court statements that are related by the expert
solely for the purpose of explaining the assumptions on which [her] opinion
rests are not offered for their truth and thus fall outside the scope of the
Confrontation Clause.” Id. at __, 132 S. Ct. at 2228, 183 L. Ed. 2d at 99 (plurality opinion). In opining that the Cellmark
DNA profile was never admitted for its truth, Justice Alito reasoned,
[t]his conclusion is entirely consistent with Bullcoming and Melendez-Diaz. In those cases, the forensic reports were
introduced into evidence, and there is no question that this was done for the
purpose of proving the truth of what they asserted: in Bullcoming that the defendant’s blood alcohol level exceeded the
legal limit and in Melendez-Diaz that the
substance in question contained cocaine. Nothing comparable happened here. In
this case, the Cellmark report was not introduced into evidence. An expert
witness referred to the report not to prove the truth of the matter asserted in
the report, i.e., that the report
contained an accurate profile of the perpetrator’s DNA, but only to establish
that the report contained a DNA profile that matched the DNA profile deduced
from [Williams’s] blood.
[Id. at __, 132 S. Ct. at 2240, 183 L. Ed. 2d at 112.]
Alternatively, Justice Alito’s opinion states that “even if the report
produced by Cellmark had been admitted into evidence, there would have been no
Confrontation Clause violation” because the report was not produced for the
primary purpose of accusing a targeted individual. Id. at __, 132 S. Ct. at
2228, 183 L. Ed. 2d at 99. “The report
was sought not for the purpose of obtaining evidence to be used against
[Williams], who was not even under suspicion at the time, but for the purpose
of finding a rapist who was on the loose.” Ibid.
This alternative analysis -- promoting a targeted-accusation test -- provoked
criticism from other Court members, who asserted that the opinion threw into
disorder the Court’s previously settled test for assessing whether evidence is
testimonial for confrontation purposes. Id.
at __, 132 S. Ct. at 2274, 183 L. Ed. 2d at 149 (Kagan, J., dissenting).
However, before turning to the dissent’s disagreement with Justice Alito’s
plurality opinion, it is noteworthy that even within the plurality there were
concurring opinions.
Justice Breyer, who also joined Justice Alito’s opinion, issued a
concurring opinion in which he largely agreed with the plurality, but expressed
his view that “neither the plurality nor the dissent answers adequately: How
does the Confrontation Clause apply to the panoply of crime laboratory reports
and underlying technical statements written by (or otherwise made by)
laboratory technicians?” Id. at __, 132 S. Ct. at 2245, 183 L. Ed. 2d at 117 (Breyer, J., concurring). Addressing the dissent
specifically, Justice Breyer critically noted that its reasoning would
“require[e] the prosecution to call all
of the laboratory experts” who worked on a matter. Id. at __, 132 S. Ct. at
2246, 183 L. Ed. 2d at 118. Ultimately,
Justice Breyer stated, “I adhere to the dissenting view set forth in Melendez-Diaz and Bullcoming, under which the Cellmark report would not be
considered ‘testimonial’ and barred by the Confrontation Clause.” Id. at __, 132 S. Ct. at 2248, 183 L. Ed. 2d
at 121.
Justice Thomas concurred only in the judgment of the Alito plurality
opinion. Id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring in the judgment). In his
view, “the disclosure of Cellmark’s out-of-court statements through the expert
testimony of [the analyst who performed the DNA match] did not violate the Confrontation
Clause.” Ibid. However, he “share[d] the
dissent’s view of the plurality’s flawed analysis,” and only reached his
conclusion “because Cellmark’s statements lacked the requisite ‘formality and
solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation
Clause.” Ibid. (quoting Michigan v. Bryant, 562 U.S. __, __, 131 S. Ct. 1143, 1168, 179 L. Ed.2d 93, 120 (2011)
(Thomas, J., concurring in judgment)).
Justice Kagan authored a dissent, which was joined by Justices Scalia,
Ginsburg, and Sotomayor. Id. at __, 132 S. Ct. at 2264, 183 L. Ed. 2d at 138 (Kagan, J., dissenting). In a single paragraph,
Justice Kagan captured the splintered viewpoints existing among the Court’s
members:
The Court today disagrees [that Williams’s
confrontation rights were violated], though it cannot settle on a reason why.
Justice Alito, joined by three other Justices, advances two theories -- that
the expert’s summary of the Cellmark report was not offered for its truth, and
that the report is not the kind of statement triggering the Confrontation
Clause’s protection. . . . [I]n all except its disposition, his opinion is a
dissent: Five Justices specifically reject every aspect of its reasoning and
every paragraph of its explication. Justice Thomas, for his part, contends that
the Cellmark report is nontestimonial on a different rationale. But no other
Justice joins his opinion or subscribes to the test he offers.
[Id. at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (citations omitted).]
On the merits of the case, Justice Kagan found that “the [Cellmark] report
is, in every conceivable respect, a statement meant to serve as evidence in a
potential criminal trial,” putting the report squarely within the realm of
testimonial statements. Id. at __, 132 S. Ct. at 2275, 183 L. Ed. 2d at 151. In concluding, Justice Kagan expressed her
frustration with the results flowing from the Court’s divergent opinions:
The five Justices who control the outcome of today’s
case agree on very little. Among them, though, they can boast of two
accomplishments. First, they have approved the introduction of testimony at
Williams’s trial that the Confrontation Clause, rightly understood, clearly
prohibits. Second, they have left significant confusion in their wake. What
comes out of four Justices’ desire to limit Melendez-Diaz
and Bullcoming in whatever way possible,
combined with one Justice’s one-justice view of those holdings, is -- to be
frank -- who knows what. Those decisions apparently no longer mean all that
they say. Yet no one can tell in what way or to what extent they are altered
because no proposed limitation commands the support of a majority.
[Id. at __, 132 S. Ct. at 2277, 183 L. Ed. 2d at 152.]
IV.
A.
Normally we would turn to the Supreme Court’s most recent decision in an
area of law to guide us in our interpretation and application of the Court’s
case law. However, like a number of state high courts and federal courts of
appeal, we find that the fractured holdings of Williams
provide little guidance in understanding when testimony by a laboratory
supervisor or co-analyst about a forensic report violates the Confrontation
Clause. See Jenkins v. United States, 75 A.3d 174, 184 (D.C. 2013)
(noting that Williams “has not provided
any clarity” to Confrontation Clause jurisprudence); State v. Ortiz-Zape, 743 S.E.2d 156, 161 (N.C. 2013)
(noting “lack of definitive guidance” provided by Williams), cert. denied, 82 U.S.L.W. 3685 (U.S. May 27, 2014).
A case may be “of questionable precedential value” where “a majority of the
Court expressly disagree[s] with the rationale of the plurality.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66, 116 S. Ct. 1114, 1128, 134 L. Ed.2d 252, 273 (1996). The general rule for interpreting opinions where no single
rationale is espoused by a majority of the Court is that “the holding of the
Court may be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds.” Marks
v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed.2d 260, 266 (1977)
(internal quotation marks omitted).
However, as recognized by the Court of Appeals for the District of Columbia
in attempting to interpret Williams, the Marks approach “works only when the
narrowest opinion actually does represent ‘a common denominator.’ If one
opinion ‘does not fit entirely within a broader circle drawn by the others,’
the Marks approach . . . would ‘turn a
single opinion’ to which ‘eight of nine justices do not subscribe’ into law.’” Young v. United States, 63 A.3d 1033, 1043 (D.C.
2013) (quoting King v. Palmer, 950 F.2d 771, 781-82 (D.C.
Cir. 1991), cert. denied, 503 U.S. 918, 112 S. Ct. 1290, 117 L. Ed.2d 514 (1992)). Rather, as the Court of Appeals for the Third Circuit has noted,
in cases where the rationales given in the multiple opinions are not subsets of
each other, “no particular standard constitutes the law of the land, because no
single approach can be said to have the support of a majority of the Court.” Rappa v. New Castle Cnty., 18 F.3d 1043, 1058 (3d Cir.
1994); see also State v. Deadwiller, 834 N.W.2d 362, 373 (Wis. 2013)
(“If no theoretical overlap exists between the rationales employed by the
plurality and the concurrence, ‘the only binding aspect of the fragmented
decision . . . is its specific result.’” (alteration in original) (quoting Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222, 234 (3d Cir.
2002), cert. denied, 538 U.S. 1012, 123 S. Ct. 1927, 155 L. Ed. 848 (2003))
(internal quotation marks omitted)).
We find that Williams is such a case
for the following reasons.
Justice Alito, in his four-justice plurality opinion, found no
Confrontation Clause violation because (1) the expert witness’s reference to
the laboratory report in question was not an assertion that the information in
the report was true, Williams, supra, 567 U.S.
at __, 132 S. Ct. at 2240, 183 L. Ed. 2d at 111-12; and (2) the report was
not testimonial because it was not produced for the primary purpose of accusing
a specific, known defendant, id. at __,
132 S. Ct. at 2243-44, 183 L. Ed. 2d at 115-16. Justice Thomas, writing
only for himself, concurred in the result because he also concluded that the
report was not testimonial. Id. at __,
132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring in
the judgment). However, he applied an entirely different test, focusing on the
formality and solemnity of the statement rather than whether its primary
purpose was accusatory. Id. at __, 132 S. Ct. at 2259-60, 183 L. Ed. 2d at 133-34. He also disagreed that the report had not
been introduced for its truth. Id. at __,
132 S. Ct. at 2257, 183 L. Ed. 2d at 130. Justice Kagan, in a
four-justice dissent, disagreed with both the rationales articulated by the
plurality and with the rationale articulated by Justice Thomas. Id. at __, 132 S. Ct. at 2265, 183 L. Ed. 2d
at 139 (Kagan, J., dissenting). Rather, the dissent found that the report was
testimonial because it was intended to serve as evidence in a criminal trial
and that the manner of its introduction failed to satisfy the defendant’s
confrontation rights. Id. at __, 132 S. Ct. at 2267-68, 183 L. Ed. 2d at 142.
In short, each of those three opinions in Williams
embraces a different approach to determining whether the use of forensic
evidence violates the Confrontation Clause, and there is no narrow rule that
would have the support of a majority of the Supreme Court that we can discern
from the opinions in Williams. Further, Williams advances a wholly new approach to
when a forensic document will be deemed testimonial, and that approach diverges
from the primary purpose test that had been applied previously.
We find Williams’s force, as
precedent, at best unclear. Without more definitive evidence that the Court is
adopting an approach other than the primary purpose test for use in determining
when a forensic document is testimonial, we are reluctant to conclude that the
primary purpose test has been abandoned.
Moreover, since the Supreme Court’s Crawford
decision and its subsequent cases applying the “primary purpose” test to
various hearsay statements made to police,8
our Court has followed the “primary purpose” test to distinguish between
non-testimonial and testimonial statements when determining whether a violation
of the Confrontation Clause has occurred. See
State ex rel. J.A., 195 N.J. 324, 348-51 (2008)
(finding that, because non-appearing eyewitness’s statement to police about
robbery and robbers’ flight was testimonial, statement’s admission violated
defendant’s confrontation rights); State v.
Buda, 195 N.J. 278, 304-08 (2008)
(holding battered child’s statement to mother and separate statement during
hospital admission to child services worker were not testimonial and therefore
admission of statements did not violate defendant’s confrontation rights).9 Accordingly, we adhere to that approach.
Furthermore, the divergent analytic approaches taken in Williams with respect to the testimonial
nature of the Cellmark report also undermine the decision’s value in assessing,
in any given circumstance involving forensic evidence, whether a defendant’s
confrontation rights were violated. Accordingly, we turn for more reliable
guidance in that respect to pre-Williams
Confrontation Clause law.
B.
In Melendez-Diaz, supra, no witness was offered to support and
be cross-examined in respect of the statements contained in the forensic
document that was admitted into evidence without live testimony. 557 U.S. at 308-09, 129 S. Ct. at 2531, 174 L. Ed. 2d
at 320. In Bullcoming, supra, a forensic report was admitted into
evidence through the testimony of a co-worker who did not observe the work of
the analyst who performed the testing, serve as the analyst’s supervisor, or
certify the results obtained by the analyst whose work was contained in the
report as a second independent reviewer. 564 U.S.
at __, 131 S. Ct. at 2709-10, 180 L. Ed. 2d at 616. The holdings in those two
cases can be understood based on the peculiar and stark facts in each. That
said, it is far from clear that either case compels a broad new obligation
requiring testimony by multiple analysts involved in every kind of forensic
testing that produces a report used in a criminal case against a defendant.
First, neither Bullcoming’s holding
nor Melendez-Diaz’s requires that every
analyst involved in a testing process must testify in order to admit a forensic
report into evidence and satisfy confrontation rights. That conclusion was
underscored in Justice Sotomayor’s observations on Melendez-Diaz in Bullcoming,
supra. See
564 U.S. at __ n.2, 131 S. Ct. at 2721 n.2, 180 L. Ed. 2d at 627 n.2 (Sotomayor, J., concurring). Justice Kagan’s
dissent in Williams, supra, makes the same point. See
567 U.S. at __ n.4, 132 S. Ct. at 2273 n.4, 183 L. Ed. 2d at 148 n.4 (Kagan, J., dissenting). The fact that no
member of the Court except Justice Scalia joined Section IV of Bullcoming further suggests that all of the
other justices harbor some level of disquiet over the necessity and
practicality of rigidly interpreting the Confrontation Clause to compel the
testimony of all persons who handled or were involved in the forensic testing
of a sample.
Second, neither Melendez-Diaz nor Bullcoming lead to the conclusion that in
every case, no matter the type of testing involved or the type of review
conducted by the person who does testify, the primary analyst involved in the
original testing must testify to avoid a Confrontation Clause violation. In Melendez-Diaz, no analyst testified. In Bullcoming, the surrogate analyst who
testified was found to lack sufficient direct knowledge about the blood alcohol
testing and the conclusions in the blood alcohol report that the surrogate
neither certified nor separately reviewed. We do not find that either Melendez-Diaz or Bullcoming stands for the proposition that in all cases the
primary analyst who performed the test must testify when a different,
sufficiently knowledgeable expert is called to testify at trial. That would
take the holdings of those decisions to a new level, which we decline to do
when the Supreme Court has not done so.
Moreover, it would take confrontation law to a level that is not only
impractical, but, equally importantly, is inconsistent with our prior law
addressing the admissibility of an expert’s testimony in respect of the
substance of underlying information that he or she used in forming his or her
opinion.
Even prior to the Supreme Court’s reexamination of the Confrontation Clause
in Crawford and our subsequent
articulation of the primary purpose test in J.A.
and Buda, we had grappled with the
admissibility of medical reports and other forensic evidence under our evidence
rules. As noted by the State in this case, N.J.R.E.
703 allows a testifying expert to rely on inadmissible facts or data as long as
those facts or data are “of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject.” N.J.R.E. 705 further provides that, although
an expert “may testify in terms of opinion or inference and give reasons
therefor without prior disclosure of the underlying facts or data, . . . [t]he
expert may in any event be required to disclose the underlying facts or data on
cross-examination.” While not a substitute for a confrontation analysis as to
when the proponent of the underlying information must be produced for
cross-examination, it provides necessary background to our analysis of the
forensic evidence in issue.
Among the documents that may properly be relied on by an expert witness
under Rule 703 are nontestimonial
foundational documents. We have previously held that documents demonstrating
that a machine is in good working condition and is calibrated correctly are
within this class of nontestimonial foundational documents because they do not
report past facts and are not generated in order to establish a fact that is an
element of a criminal offense. See Sweet, supra,
195 N.J. at 372-74 (noting admissibility
of ampoule testing certificates and breath testing instrument inspection
certificates because nontestimonial); State
v. Chun, 194 N.J. 54, 142-44
(commenting similarly for Alcotest blood alcohol test results in respect of
foundational documents that show device is in good working condition), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008). A number
of other courts similarly have found that the introduction at trial of
calibration records does not violate the Confrontation Clause. See, e.g., People
v. Pealer, 985 N.E.2d 903, 907-08 (N.Y.), cert. denied, __ U.S. __, 134 S. Ct. 105, 187 L. Ed.2d 77 (2013); Commonwealth v. Dyarman, 73 A.3d 565, 574 (Pa. 2013),
cert. denied, __ U.S. __, 134 S. Ct. 948, 187 L. Ed.2d 785 (2014); Jones v. State, 982 N.E.2d 417, 428 (Ind. Ct.
App.), transfer denied, 987 N.E.2d 70 (Ind. 2013).
Although a hearsay analysis is not a replacement for a confrontation
analysis, we note further that in the application of N.J.R.E. 808’s business records hearsay exception to scientific
reports and records containing embedded information we eschew admission of
subjective, complex hearsay statements. The admissibility of such reports
depends on factors including “the relative degrees of objectivity and
subjectivity involved in the procedure; the regularity with which these
analyses are done; [and] the routine quality of each analysis.” State v. Matulewicz, 101 N.J. 27, 30 (1985)
(addressing laboratory report prepared by State Police chemist). Recent cases
in this context continue to connect the degree of complexity of the analysis
with the importance of allowing the other party to cross-examine the expert who
conducted that analysis. See Agha v. Feiner, 198 N.J. 50, 65-67 (2009)
(differentiating between “straightforward observations” contained in expert
reports that may be admitted for their truth without an opportunity for
cross-examination of the declarant, and statements of “diagnosis” “critical to
the primary issue in the case” which may not be); Chun, supra, 194 N.J. at 142 (finding routine Breathalyzer
calibration test reports admissible as business records); Brun v. Cardoso, 390 N.J. Super. 409, 422 (App. Div. 2006) (rejecting medical document as business record based
on complexity of MRI reading and diagnosis).
In determining when the facts underlying a forensic expert opinion may be
disclosed to the jury, our evidence case law has focused on whether the witness
is knowledgeable about the particular information used in forming the opinion
to which he or she is testifying and has a means to verify the underlying
information even if he or she was not the primary creator of the data. Our
evidence law is thus consistent with the principle that a knowledgeable expert
who is someone other than the primary analyst who conducted a forensic gas
chromatography/mass spectrometry test may testify to an opinion regarding
testing results, when those results have been generated by demonstrably
calibrated instruments. Accord Ortiz-Zape, supra,
743 S.E. 2d at 161-62 (holding that
expert’s use of machine-generated raw data, consistent with North Carolina’s
Evidence Rule 703, does not violate Confrontation Clause when defendant has
opportunity to cross-examine expert who rendered opinion based on that data).
With that backdrop, we examine the testimony of Dr. Barbieri that was
challenged in this matter.
V.
A.
In this appeal, defendant argues that her confrontation rights were
violated by Dr. Barbieri’s testimony and the admission of his certified report.
She focuses on Dr. Barbieri’s testimony and opinion that, based on the nature
and quantity of drugs found in defendant’s blood sample from testing procedures
carried out by analysts in the laboratory he supervised, defendant was drug
impaired at the time of her motor vehicle accident. The evolution of
defendant’s argument deserves brief mention.
At trial, defendant objected to the admission of Dr. Barbieri’s three-page
report on the basis that it was inadmissible hearsay because Dr. Barbieri
testified to someone else’s findings rather than his own. The State emphasized
that Dr. Barbieri testified that he personally reviewed the data generated from
the gas chromatography/mass spectrometry tests and that he was the one who
drafted and signed the report setting forth the results and his opinion. There
was no quoting of another person’s findings in Dr. Barbieri’s report; it only
referenced machine-generated data identifying and quantifying the drugs found
in defendant’s blood sample.
The trial court rejected defendant’s hearsay argument as a basis to exclude
the report, and rightly so. Dr. Barbieri examined and used the raw data
generated by the gas chromatography/mass spectrometry machines in preparing his
report and the conclusions that he reached. This case is unlike Agha, supra,
198 N.J. at 67, where an expert testified
based on a hospital report containing another doctor’s subjective statements
and conclusions. Under those circumstances, we held that the statements
contained in the report were hearsay and could not be admitted for their truth
through the expert’s testimony. Ibid.
Later, at the close of the State’s case, defendant filed a motion to strike
Dr. Barbieri’s testimony, arguing that the State was required to produce the person
who actually performed the testing about which Dr. Barbieri testified.
Defendant did not expressly claim a violation of her rights under the
Confrontation Clause. The trial court denied the motion, explaining that “[a]s
the supervisor of the lab, certainly [Dr. Barbieri is] in a position to testify
about the procedures that were employed and give an opinion, based upon his
expertise, [on] what conclusions should flow from that testing.” The court
indicated that the weight to be given to the testimony would be up to the jury,
but it declined “to exclude [Dr. Barbieri’s] testimony because he did not
personally perform the tests.”
In a post-trial motion and when the case was appealed to the Appellate
Division, defendant cast her argument about Dr. Barbieri’s testimony as a
violation of the Confrontation Clause. The Appellate Division addressed that
Confrontation Clause argument, and we do as well. However, the State makes a
strong argument that defendant waived her Confrontation Clause argument, or
that the issue should be assessed as a matter of plain error in light of the
way it has been raised. Had a confrontation argument been raised before the
State concluded its case, inquiry could have been made as to which analyst or
analysts defendant wanted produced. Even at this stage in the proceedings, we
are uncertain whether defendant argues that the State must call all fourteen
analysts who played some role, no matter how inconsequential, in the procedures
and protocols at the lab, or one analyst, or some number in between. Defendant
has never been put to the task of making a confrontation demand.10 As such we must consider defendant’s
confrontation argument taken to the extreme: that all fourteen analysts must be
produced in order for the State to introduce Dr. Barbieri’s testimony and
report.
With that perspective, we turn to Dr. Barbieri’s testimony, which was
offered without any notice that, for confrontation purposes, he needed to
justify in detail the independence of his review of the testing that was done
or the exact manner in which he reached the conclusions in his report.
B.
Dr. Barbieri’s testimony explained that the analysts and technicians
employed by NMS perform differing roles in the handling and testing of blood
samples. Indeed, much of modern forensic testing involves multiple analysts, as
was the case in the present matter. He described the process in detail,
including how a specimen is inspected and marked when received, how a work
order is assigned and follows the work through every step in the process, and
how chain of custody is maintained and recorded. His description of the testing
process, he said, applied generally and in defendant’s case.
The samples are labeled.
The testing is ordered by a forensic processor.
Aliquots are drawn.
An aliquot is a small sample of the original sample
for moving back into the laboratory proper for the various types of testing.
The original sample never leaves the forensic
processing area.
After the aliquots are drawn, that original sample is
stored in a secured refrigerator. Labeled as to location and things like that.
So the aliquot goes back to the lab.
All of this is done, and [a] forensic folder is
produced, which is labeled and that carries through with all the testing; and
some of the original data actually goes into that folder.
When all the testing is done, the toxicologist is
notified. Toxicologists pick up the folder [and] review all the data. Either
the raw data that’s in the file, or on the computer. Generate a report. And
that report is sent to the client. With all the information that we have
received. And positive and negative findings as well.
Dr. Barbieri testified that 957 pages of raw data, including chain of
custody and machine-generated documents, were produced from the work that NMS
performed on defendant’s blood sample. That raw data was shared with defendant
in discovery and included, in relevant part, the machine-generated data from
the gas chromatography/mass spectrometry machines on the calibration material,
the quality control material, and the aliquots of defendant’s blood sample. Dr.
Barbieri explained how gas chromatography/mass spectrometry, which he was
trained to perform and was knowledgeable about, was used to confirm the
presence of drugs in defendant’s blood:
[I]t’s a procedure that’s been around since, 1950’s.
So it’s a well established procedure.
There’s two parts to the instrumentation. The Gas
Chromatogram, and then the Mass Spectrometer.
The GC part of it is basically a large tube. It’s
about 100-foot very fine tube in an oven. And, there’s a gas that flows
through: Helium inert gas. And the sample is injected into one end of the
column into the injectory port. And this oven heats. It heats it up to over 250
degrees centigrade. It’s very hot. And everything volatilizes into a vapor
phase. And as the gas flows through this column[, t]he column separates
different compounds. And when it comes out at the detector, the time from the
time it’s injected, to the time it comes out, is called the “retention time.”
The time it’s retained in the column.
Every compound, based upon the way the analysis is set
up, will have a definitive retention time. So we measure the retention times as
a marker for specific compounds.
As we do this, we also include in the batch,
calibration material, which would be pure compounds of different
concentrations. And also quality control material. Which is really blood
samples that contain either negative, no compound, or presence of some
compounds.
So we’re monitoring the system as it [] goes through.
And we compare the responses of [the] unknown blood sample, the retention time,
and the pe[a]k height that we get from the detector against the calibration
materials, quality controls. So we can get a quantitation of the compound; so
we identify, we quantify.
At the other end after it comes out, is Mass
Spectrometer. This is the really important part of the instrument. Because when
the pe[a]ks come out through the GC part, those new Mass Spectrometer, it’s
like a ray gun, basically, it’s shooting bullets at the compound as it’s
passing through. It fractionates them. Breaks them apart. And it breaks the
molecules apart into pieces of its original molecular weight.
Whether we do it in Willow Grove, we do it here, or we
do it in [] Alaska . . . the fractionation of that compound is the same.
You have a book. You look up Cocaine. You get the same
pieces of that molecule.
So we basically have a fingerprint of every molecule
that’s moving through that. And it’s quantified in the system. So we have a
fingerprint for cocaine. We have a fingerprint for Cocaine metabolites.
And so the Mass Spectrometer breaks it up, gives us a
fingerprint, and gives us, here is the different masses, and compares it
against a library. And it says; this is a 98 percent hit, basically. And so,
again, positive identification and qualification.
And that’s how we ran the confirmations on each of
these type of compounds.
Dr. Barbieri then identified the drugs that were found in defendant’s blood
sample and the quantities detected. He explained that documents are produced by
the instruments when the testing is performed and that the testing results are
printed directly from the machines. Those documents are compiled for a reviewer
who, in this case, was Dr. Barbieri. Dr. Barbieri testified that he had
available all 957 documents generated during the testing process involved in
defendant’s case when he performed his review and analysis of the data. He
reviewed the raw data before preparing his signed and certified report as the
forensic toxicologist on defendant’s testing. Although in his testimony Dr.
Barbieri discussed the nature and quantities of drugs he found to be present in
defendant’s blood, the machine-generated documents were not admitted into
evidence.
The State also entered Dr. Barbieri’s certified report into evidence
through his live testimony. It is undisputed that Dr. Barbieri did not actually
conduct the initial or confirmatory screening via gas chromatography/mass
spectrometry performed on defendant’s blood. We also have no evidence in this
record that Dr. Barbieri directly observed the individual analysts, who were
under his supervision, as each performed the tasks involved in the testing
process.
VI.
We note at the outset the factual differences between this case and Melendez-Diaz and Bullcoming.
First, unlike in Melendez-Diaz, where
no witness was offered to testify to the statements contained in the state
lab’s forensic document that was admitted into evidence, here we are not asked
to consider a self-admitting report.
Indeed, to the extent that, once before, we were presented with an argument
that laboratory certificates issued by the New Jersey State Laboratory could be
regarded under N.J.S.A. 2C:35_19 as
self-admitting documents that obviated any confrontation right concerns, we
rejected the notion. See State v. Simbara, 175 N.J. 37, 49 (2002).
Instead, we interpreted N.J.S.A. 2C:35_19
as creating a notice-and-demand procedure for the assertion -- or waiver -- of
a defendant’s right to confront the certificate’s preparer. Id. at 48-49.
The NMS report at issue here is outside the purview of N.J.S.A. 2C:35-19 because the report was the product of a private
laboratory. More importantly, the report was admitted through the live
testimony of Dr. Barbieri, the person who prepared, signed, and certified the
report, and Dr. Barbieri was available for cross-examination on his report.
That renders the circumstances of the NMS report’s admission materially
different from those of the report admitted at trial in Melendez-Diaz.
Second, the forensic report and testimony admitted in this case differs in
several respects from what happened in Bullcoming.
In Bullcoming, supra, the SLD forensic report was admitted through the testimony
of a co-analyst who did not observe the work of the SLD analyst who performed
the testing and who did not serve as a supervisor or reviewer responsible for certifying
the blood alcohol results obtained by the analyst whose work was referenced in
the report. 564 U.S. at __, 131 S. Ct. at 2711-12, 180 L. Ed. 2d at 618. If all we had was a co-analyst reciting the
findings contained in a report that he had not participated in preparing or
evaluated independently, we would be faced with a scenario indistinguishable
from Bullcoming. But that is not the case
here.
In the present matter, Dr. Barbieri supervised the technicians and analysts
who handled defendant’s blood sample and performed the tests on small amounts
of that sample using the laboratory’s gas chromatography/mass spectrometry
machines. But we do not have testimony from someone simply bearing the title of
supervisor. Here we are presented with testimony by a supervisor who was
qualified as an expert in the relevant subjects, and who analyzed the
machine-generated data and produced the certified report in issue.
Dr. Barbieri reviewed the procedures followed in the testing and personally
reviewed the machine-generated documents, including the readings from
calibration material and quality control material, when reviewing the readings
taken on the aliquots of defendant’s blood.11
He signed the report and certified its accuracy. The supervisory role that Dr.
Barbieri played in the testing process also required him to be responsible for
the testing procedures utilized by the NMS lab generally and in this case, to
be knowledgeable about the testing, and to be able to evaluate the results
generated by the tests run by persons under his supervision and responsibility.
He testified that he had to satisfy himself that the lab’s procedures and
protocols were followed during the testing before issuing his report.
Dr. Barbieri’s participation in preparing the report and developing the
substantive conclusions contained therein was real and direct. He evaluated the
results of the testing, found them to be reliable, and produced the report
detailing those results. Moreover, he signed and certified that report. As the
reviewer of the testing process and the author of the report, it was proper for
him to testify to its contents and to answer questions about the testing it
reported. The fact that Dr. Barbieri was testifying in respect of his own
report distinguishes him from the co-analyst in Bullcoming,
who merely presented a blood alcohol report prepared by another SLD
co-employee.
With regard to Dr. Barbieri’s in-court testimony, we note that he explained
how he independently reviewed the machine-generated data and came to his
conclusion about the findings and opinion stated in the report that he
authored, signed, and certified. Dr. Barbieri testified that he reviewed the
compiled calibration and quality control documents and machine-generated test
results on defendant’s blood sample and concluded that they demonstrated that
[a]ll the tests were done appropriately, according to
our standard operating procedures, including our quality controls, calibration,
blanks, and all the testing was done. And I believe the results produced were
accurate and true representations of what was there in the blood of Julie
Michaels.
We conclude that there is no confrontation violation caused by Dr.
Barbieri’s use of nontestimonial calibration and quality control data in
preparing his report, or by his discussion of that data in his testimony. Cf. Sweet,
supra, 195 N.J.
at 370-71; Chun, supra, 194 N.J. at 142-44.
Other courts similarly have determined that the introduction at trial of
calibration records does not violate the Confrontation Clause. See, e.g., Pealer,
supra, 985 N.E.
2d at 907-08; Dyarman, supra, 73 A.
3d at 574; Jones, supra, 982 N.E.
2d at 428.
To the extent that the machine-generated results of the tests conducted on
defendant’s blood are of a more directly accusatory nature, we address that
data separately. As noted, the machine-generated documents identifying the
drugs found in defendant’s blood, and quantifying each drug, were not
introduced into evidence, but their content was used by Dr. Barbieri in
preparing his report that stated the drugs found to be present in defendant’s
blood and the quantities detected.
Certainly, Dr. Barbieri’s report is testimonial, both in his conclusion and
in his use of test results indicating that defendant had specific amounts of
certain drugs in the blood sample taken shortly after her motor vehicle
accident. One can hardly dispute that those conclusions are testimonial in
nature, and Bullcoming, supra, supports such a determination. See 564 U.S.
at __, 131 S. Ct. at 2717, 180 L. Ed. 2d at 623-24. Dr. Barbieri’s report
bears all the indicia of a direct accusation against defendant. As the author
of that report, he is bearing witness against the accused, namely defendant,
when the report is prepared for the State at its request. Because defendant had
the opportunity to confront and cross-examine Dr. Barbieri in court about the
results of the testing that he reviewed and certified, defendant was not denied
her right to confrontation.
Reviewed in toto, the machine-generated data provided the basis for Dr.
Barbieri to review the test results independently and certify that the results
were accurate and not flawed in some way. Clearly, defendant could not
cross-examine the machines themselves. See
Jenkins v. State, supra, 102 So. 3d at 1069
(approving supervisor’s expert testimony after review of gas chromatography
results obtained by nontestifying analyst); see
also United States v. Moon, 512 F.3d 359, 362 (7th Cir.)
(“[H]ow could one cross-examine a gas chromatograph?”), cert. denied, 555 U.S. 812, 129 S. Ct. 40, 172 L. Ed.2d 19 (2008). And we
have rejected the argument that defendant’s confrontation rights could only be
satisfied by testimony from all analysts involved in the testing. Defendant’s
opportunity to cross-examine Dr. Barbieri about the testing and its results
provided meaningful confrontation. His testimony is in no way equivalent to the
surrogate testimony provided by the co-analyst from the SLD lab in Bullcoming.
To be complete, we highlight our point of difference with the dissent.
Contrary to the dissent’s characterization of this record, Dr. Barbieri was not
repeating the findings and conclusions of the analysts who manned the gas
chromatography/mass spectrometry devices. Rather, the findings and conclusions
contained in the report and to which he testified were his own. It was his job
to review and certify the results of the tests performed on defendant’s blood
sample.
Dr. Barbieri testified that he relied on raw data produced by the machine
tests regarding the levels of alprazolam, cocaine, and cocaine metabolites in
defendant’s system, and drew his own conclusions from that data. He reviewed the
calibration and quality control tests to ensure that the machine was producing
accurate results in order to be satisfied that the machines were generating
true readings when defendant’s blood sample was tested. He explained the
confirmatory test that is performed by the gas chromatography and mass
spectrometry machine and how its results are issued by the machine itself and
are not capable of being misreported or altered by a human being. Dr.
Barbieri’s explanation could have been more fulsome. See e.g., Ortiz-Zape, supra, 743 S.E.
2d at 158-59 (setting forth detailed testimony of co-analyst on workings of
gas chromatography/mass spectrometry machine, whose results witness
independently reviewed and testified to without violating defendant’s
confrontation rights). However, as he explained, the machine process is highly
standardized. In the instant case, the State’s presentation of this
supervisor/reviewer’s signed and certified report, based on his independent
review of machine-generated data, through his live testimony, did not violate
defendant’s confrontation rights.
Our difference with the dissent thus comes down to this: we believe that a
truly independent reviewer or supervisor of testing results can testify to
those results and to his or her conclusions about those results, without
violating a defendant’s confrontation rights, if the testifying witness is
knowledgeable about the testing process, has independently verified the
correctness of the machine-tested processes and results, and has formed an independent
conclusion about the results. The dissent claims that such testimony thwarts a
defendant’s confrontation rights. In the dissent’s view, only testimony by the
original analyst who worked on a test procedure, of any kind, can satisfy a
defendant’s confrontation rights. The majority’s view, and holding, recognizes
that testimonial facts can “belong” to more than one person if the verification
and truly independent review described above are performed and set forth on the
record by the testifying witness.
In our judgment, Dr. Barbieri satisfied that standard and was not parroting
the testimonial hearsay of another analyst. Rather, he testified to the
findings and conclusions that he reached based on test processes that he
independently reviewed and verified. Permitting such testimony does not value
expediency over constitutional rights, as the dissent claims. Instead, this
approach recognizes the reality that more than one expert can responsibly
verify a process, find a fact to be reliable, and draw a conclusion.
Respectfully, we do not accept the dissent’s inflexible approach to scientific
testing that involves machine-generated data.
In concluding, as we do on this record, that defendant’s confrontation
rights were not violated, we note that several other jurisdictions similarly
have found that a supervisor or reviewing analyst who reviews and certifies the
work of an analyst or analysts may testify in respect of forensic evidence
without running afoul of a defendant’s confrontation rights.
Specifically, a number of states have held that there is no Confrontation
Clause violation where a supervisor, who has conducted his or her own
independent review of the data generated by other analysts, testifies to the
conclusions he or she has drawn from that independent analysis. See, e.g., Marshall
v. People, supra, 309 P. 3d at 947-48 (finding no confrontation
violation where testifying expert was lab supervisor who reviewed urinalysis
test results and prepared, signed, and certified report); Jenkins v. State, supra, 102
So. 3d at 1069 (finding no confrontation
violation where testifying expert was lab supervisor who reviewed and co-signed
report identifying tested substance as cocaine and was knowledgeable about
testing procedures); Commonwealth v. Yohe,
79 A.3d 520, 540-41 (Pa.
2013) (finding confrontation rights satisfied by ability to cross-examine
supervisor who analyzed raw data from blood alcohol tests, drew conclusions
about intoxication, and prepared and signed report), cert. denied, 82 U.S.L.W. 3685 (U.S. May 27, 2014); see also Ortiz-Zape, supra,
743 S.E. 2d at 164-65 (finding no confrontation
violation where testifying expert was technical reviewer who testified to
independent conclusions based on review of cocaine substance analysis report as
well as all raw data and calibration and maintenance documentation from
testing).
We recognize that the holdings of various courts around the country have
not been uniform in analyzing Confrontation Clause questions like the one
presented here. Some courts, following Justice Thomas, have adopted an approach
that focuses on the formality and solemnity of the report at issue. See, e.g., People
v. Lopez, 286 P.3d 469, 581-84 (Cal.
2012) (finding no confrontation violation where analyst testified based on
colleague’s blood alcohol report and testing because report was unsigned and
consisted entirely of chain of custody log and machine-generated test data), cert. denied, __ U.S. __, 133 S. Ct. 1501, 185 L. Ed.2d 556 (2013); Derr v. State, 73 A.3d 254, 272-73 (Md.
2013) (finding serological and DNA testing reports introduced through lab
supervisor’s testimony insufficiently formal to be testimonial because unsigned
and no statements attesting to accuracy), cert.
denied, 82 U.S.L.W. 3707 (U.S. June 9, 2014).
Another subset of courts, citing the confusion generated by the fractured Williams opinions, have not attempted to
formulate a general approach for determining when the introduction of forensic
evidence by someone other than the analyst who performed the tests will violate
the Confrontation Clause. See, e.g., State v. Bolden, 108 So.3d 1159, 1161 (La.
2012); Deadwiller, supra, 834 N.W. 2d at 373.
Rather, these courts have resolved the cases before them by drawing analogies
to the specific facts of Williams and
holding that, because the facts are similar, the same result should pertain. Bolden, supra,
108 So. 3d at 1162; Deadwiller, supra, 834 N.W. 2d at 373-75.
We further acknowledge that a few state high courts have found that a
defendant’s confrontation rights are violated when the analyst who physically
performed the tests at issue does not testify, even when the testifying expert
is a supervisor who reviewed the data generated by the analyst and prepared the
report based on that data. See Martin v. State, 60 A.3d 1100, 1108-09 (Del.
2013) (finding Confrontation Clause violation where lab manager who reviewed
data and wrote report testified about results of blood alcohol tests because
manager did not perform or observe tests and underlying test documents were
testimonial and admitted for truth under Bullcoming);
Jenkins v. United States, supra, 75 A.
3d at 189-92 (finding violation where testifying expert was lab supervisor
who prepared report stating DNA profile match but did not perform underlying
tests; test documents were testimonial because prepared for and used in
criminal prosecution). That approach has the advantage of avoiding the
possibility that the United States Supreme Court may one day agree on the most
exacting interpretation of confrontation rights vis-à-vis multiple actors
involved in handling and testing evidence subject to all forms of forensic
testing. However, as noted earlier, that outcome is uncertain. And taking the
most rigid approach to confrontation rights in the context of forensic reports
carries practical drawbacks that range from moderate to severe. It leaves no
meaningful solution where the analyst or analysts no longer work at the lab,
are unavailable, or are deceased. There is a real likelihood that such dilemmas
may arise in cold cases. Further, it cannot be assumed that retesting a sample
is invariably a possibility. Moreover, demanding the in-court testimony of
every analyst is unnecessary for providing the defendant with meaningful
cross-examination on every testing process utilized in forensic examinations.
We believe that the Supreme Court’s decisions and various opinions in Melendez-Diaz and Bullcoming have left the states room to apply the confrontation
principles expressed in those cases in meaningful ways, depending on the nature
of the testing that is involved and the independence of the analysis and review
of the person who testifies on the basis of verifiable test results.
Here we are satisfied that the machine-calibrated, quality-controlled gas
chromatography/mass spectrometry tests performed on defendant’s blood sample
provided a sound basis for Dr. Barbieri, as an expert in the fields of forensic
toxicology and pharmacology and a person knowledgeable about the testing
process employed, to opine on the drugs found in defendant’s blood and their
likely impact on her at the time the blood was drawn. When a confrontation
challenge is raised, the record must show in detail the basis upon which the
testifying witness soundly has reached his or her conclusion. Here, defendant’s
opportunity to cross-examine Dr. Barbieri satisfied defendant’s right to
confrontation on the forensic evidence presented against her.
VII.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
SUPREME COURT OF NEW JERSEY
A- 69 September Term 2012
072106
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS, a/k/a LYNN MICHAELS, JULIE LYNN,
JOLINE BROOKS, JODIE L. CALLOWAY, JODIE CALLAWAY,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
In criminal cases, the State routinely retains scientists and analysts to
perform tests on a suspect’s blood to detect the presence of drugs or alcohol.
Today, the majority pronounces that the accused has no constitutional right to
confront the scientist or analyst who actually performs the test. The majority
upholds a criminal conviction based on the expert testimony of a laboratory “supervisor,”
who did not perform, participate in, or observe the analysis of defendant’s
blood test. Indeed, this “supervisor” was used as a conduit to pass through to
the jury the testimonial statements of the real test analysts who were never
subject to cross-examination.
The Sixth Amendment’s Confrontation
Clause generally bars the admission of an absent witness’s out-of-court
testimonial hearsay as a substitute for live in-court testimony when the
accused has not had the opportunity to cross-examine the absent witness. Crawford v. Washington, 541 U.S. 36, 50-62, 124 S. Ct. 1354, 1363-71, 158 L. Ed.
2d 177, 192-99 (2004). The majority’s opinion cannot be squared with that
principle. More ominously, the opinion is in direct conflict with Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705, 2713, 180 L. Ed.
2d 610, 619 (2011), a case in which the United States Supreme Court held that
the State violated the Sixth Amendment’s Confrontation
Clause by calling a non-testing analyst as a substitute witness for the analyst
who performed a blood analysis. However confused the United States Supreme
Court’s Confrontation Clause jurisprudence may be in the wake of Williams v. Illinois, 567 U.S. ___, 132 S.
Ct. 2221, 183 L. Ed. 2d 89 (2012) --
with its plurality, concurring, and dissenting opinions -- it is doubtful that
any member of the Williams Court would
adopt the approach the majority is taking here.
The purpose of the Confrontation Clause is not to foster expedient trial
procedures, but to ensure that testimonial evidence is tested in the crucible
of cross-examination -- however time consuming or difficult that process may
be. See Crawford,
supra, 541 U.S.
at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. Thus, chemical analysts
who provide out-of-court “testimony” through laboratory reports must be made
available for cross-examination. Bullcoming,
supra, 564 U.S.
at ___, 131 S. Ct. at 2716, 180 L. Ed. 2d at 622.
Curtailing confrontation rights is not the answer to the uncertainty in
federal jurisprudence. Although the majority upholds the conviction in this
case, it is chancing the reversal of countless future convictions by rendering
an opinion that may fall below the minimum guarantees of the Sixth Amendment. The majority may be
charting a course that will collide with the next United States Supreme Court
case construing the Confrontation Clause. Law enforcement, if properly
directed, can successfully prosecute cases while conforming to the dictates of
the Confrontation Clause. It has done so in the past.
Whatever perceived benefits are achieved by the majority opinion, they come
at a high price -- the abandonment of basic principles that underlie our
Confrontation Clause jurisprudence. I therefore respectfully dissent.
I.
A.
The majority opinion cannot be reconciled with the United States Supreme
Court’s recent Confrontation Clause jurisprudence. One overarching principle
remains clear from that jurisprudence: the admission of testimonial statements
from witnesses absent from trial violates the Sixth Amendment’s Confrontation
Clause unless the witnesses are “unavailable,” and “the defendant has had a
prior opportunity to cross-examine” them. Crawford,
supra, 541 U.S.
at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. A statement is
“testimonial” if the primary purpose of making the statement is to establish a
fact as evidence in a later criminal prosecution. Bullcoming, supra, 564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed.
2d at 620 n.6 (quoting Davis v. Washington,
547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).
Applying that test in Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310-11,
129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321 (2009), the Court held
that a laboratory report identifying a substance as cocaine was testimonial
evidence and therefore its admission at trial, without the testimony of the
analyst who prepared it, violated the Sixth Amendment’s Confrontation
Clause. The report in Melendez-Diaz was
created for the specific purpose of serving “as evidence in a criminal
proceeding.” Bullcoming, supra, 564 U.S.
at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 615.
Bullcoming presented a variation of the theme in Melendez-Diaz.
In Bullcoming, the Court held that the in-court testimony of a scientist
who did not conduct or participate in any laboratory tests relevant to the
case, but who read into evidence the actual analyst’s test results contained in
a certified report, violated the Confrontation Clause. Id. at ___, 131 S.
Ct. at 2713, 180 L. Ed. 2d at 619. The facts in Bullcoming
are remarkably similar to the facts in the present case.
In Bullcoming, the defendant was arrested for driving while
intoxicated (DWI). Id. at ___, 131 S. Ct. at 2710, 180 L. Ed.
2d at 616. A blood sample was taken from him at a hospital and submitted for
testing at a state laboratory. Ibid. A forensic analyst operated a gas
chromatograph machine to test Bullcoming’s blood sample and determined his
blood alcohol content (BAC). Id. at ___, 131 S. Ct. at 2711, 180 L.
Ed. 2d at 617. The Supreme Court made the following observations about the
operation of the gas chromatograph machine: “‘[T]he analyst must be aware of,
and adhere to, good analytical practices and understand what is being done and
why.’” Id. at ___ n.1, 131 S. Ct. at 2711 n.1, 180 L. Ed.
2d at 617 n.1 (quoting David T. Stafford, Chromatography, in Principles
of Forensic Toxicology 92, 114 (B. Levine ed., 2d ed. 2006)). Although the
gas chromatograph machine produces a printed graph, securing “an accurate BAC
measurement . . . is not so simple or certain.” Ibid. Indeed, the “risk
of human error [is not] so remote as to be negligible.” Ibid.
The forensic analyst determined that Bullcoming’s BAC was 0.21, a level
sufficient to support a conviction for aggravated DWI. Id. at ___, 131 S.
Ct. at 2711, 180 L. Ed. 2d at 617–18. The analyst was not called as
a witness at Bullcoming’s trial. Id. at ___, 131 S. Ct. at
2711–12, 180 L. Ed. 2d at 618. Instead, the State called Gerasimos
Razatos, a scientist also qualified as an expert in the gas chromatograph
machine but who did not participate in testing Bullcoming’s blood. Id.
at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live,
in-court testimony” about laboratory procedures, the machine’s operation, and
the results of the BAC test. Id. at ___, 131 S. Ct. at 2713, 180 L.
Ed. 2d at 619. In addition, the analyst’s report was admitted as a business
record. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at
618.
The United States Supreme Court held that Razatos’s surrogate testimony
violated the Confrontation Clause because Bullcoming did not have the
opportunity to cross-examine the forensic analyst who tested his blood. Id.
at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. According to
the Court, the surrogate expert’s testimony “could not convey what [the
forensic analyst] knew or observed about the events his [laboratory report]
concerned, i.e., the particular test and testing process he employed. Nor could such
surrogate testimony expose any lapses or lies on the certifying analyst’s
part.” Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at
622. Indeed, at trial, Razatos admitted that “‘you don’t know unless you
actually observe the analysis that someone else conducts, whether they followed
th[e] protocol in every instance.’” Id. at ___ n.8, 131 S. Ct. at
2715 n.8, 180 L. Ed. 2d at 622 n.8 (alteration in original). Razatos,
moreover, was unable to testify why the forensic analyst was on unpaid leave. Id.
at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Thus, the
defense could not ask “questions designed to reveal whether incompetence,
evasiveness, or dishonesty accounted for [the forensic anaylst’s] removal from
his work station.” Ibid.
The Supreme Court reached conclusions relevant to the facts before us.
First, “the comparative reliability of an analyst’s testimonial report drawn
from machine-produced data does not overcome the Sixth Amendment bar.” Id.
at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 621. Second, the
analysts who write reports that the prosecution introduces must be made
available for confrontation even if they possess “‘the scientific acumen of
Mme. Curie and the veracity of Mother Teresa.’” Ibid. (quoting Melendez-Diaz,
supra, 557 U.S. at 319 n.6, 129 S. Ct. at 2537 n.6, 174 L.
Ed. 2d at 327 n.6).
In her concurring opinion, Justice Sotomayor noted that Bullcoming
would have been “a different case if, for example, a supervisor who observed an
analyst conducting a test testified about the results or a report about such
results.” Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at
629. Razatos did not observe the testing of the forensic analyst. Ibid.
B.
The facts before us are remarkably similar to those in Bullcoming,
and yet the majority reaches a diametrically different result.
Here, defendant Julie Michaels was charged with vehicular homicide, assault
by auto, and related offenses stemming from a head-on car collision. The State
claimed that defendant was under the influence of drugs at the time of the
accident. At the direction of a police officer, a sample of defendant’s blood
was taken at the hospital where she was treated. The Sussex County Prosecutor’s
Office forwarded the blood sample to NMS Labs in furtherance of its criminal
investigation. NMS Labs submitted back a report entitled “STATE V. JULIE
MICHAELS” authored by forensic toxicologist Edward J. Barbieri, Ph.D.
The report revealed that defendant had concentrations of cocaine and Xanax
in her blood. According to Dr. Barbieri, defendant’s “alertness, judgment,
perception, coordination, response time and sense of care and caution were
impaired rendering this individual unfit to operate a motor vehicle safely.”
The report failed to reveal that Dr. Barbieri did not conduct, participate in,
or observe any of the blood tests that detected the drugs in defendant’s
system. Dr. Barbieri’s report, which was admitted into evidence, does not name
the analysts who conducted the test, although the discovery, which is
referenced by the majority and is not part of the record, suggests that only
two analysts were involved in the actual testing. Other laboratory employees
referred to by the majority appear to be merely in the chain of custody.
Like in Bullcoming, the analysts here used a gas chromatograph
machine to test defendant’s blood sample. Like Razatos in Bullcoming,
Dr. Barbieri conceded that “there’s always a human element” involved when a gas
chromatograph machine is operated. Like Razatos in Bullcoming, Dr.
Barbieri averred to the procedures that NMS technicians follow when testing
samples. Like Razatos in Bullcoming, Dr. Barbieri took the test results
of the analysts and merely parroted them before the jury. Like Razatos in Bullcoming,
Dr. Barbieri could not testify about what the forensic analysts “knew or
observed” when they performed the “particular test and testing process,” nor
was he in a position to “expose any lapses” on the part of the analysts. See
id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622.
Moreover, Dr. Barbieri does not fit within the example given by Justice
Sotomayor in her concurrence of a supervisor who observed the testing
performed by an analyst.
In sum, Dr. Barbieri, in his surrogate testimony, passed through the
testimonial statements of the analysts who actually performed the tests on
defendant’s blood, denying defendant her right of confrontation. This is
exactly what Bullcoming says the Sixth Amendment
prohibits. There are no meaningful differences between the case before us and Bullcoming,
except the outcomes.
II.
The majority contends that, even though Dr. Barbieri conducted none of the
blood tests involved in this case, his testimony is constitutionally admissible
expert testimony under N.J.R.E. 703. The majority concedes that the
analysts’ “facts” -- the tests they performed on defendant’s blood sample and
the results they recorded -- are testimonial statements. That Dr. Barbieri
relied on facts or data from the analysts in forming his own opinion does not
diminish the impermissible use of the analysts’ testimonial statements, which
were presented to the jury. Those absent analysts’ tests, moreover, were
offered for their truth -- offered to prove that the substances in defendant’s
blood were cocaine and Xanax. Those tests were not foundational, not
calibrations of a machine, but were the very tests that went to the heart of
whether defendant was guilty of the crimes charged. The majority allows the
absent analysts’ testimonial statements to be passed through Dr. Barbieri to
the jury without cross-examination of the analysts.
The position taken by the majority has not only been rejected in Bullcoming
but also does not find support in either the plurality opinion or dissenting
opinion in Williams v. Illinois. In Williams, supra, the
Court divided over the question of whether a DNA profile, prepared by a
specialist who did not testify, was offered for the truth of its contents. 567 U.S.
at ___, ___, 132 S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99, 108
(plurality opinion). Here, the majority asserts that it is not relying on Williams.
The majority, moreover, does not contest that the analysts’ tests results were
offered for their truth or that the results were testimonial in nature. No
justice in Williams suggested that passing testimonial statements
offered for their truth through a surrogate witness would be acceptable under
the Confrontation Clause.
It may be true that Dr. Barbieri gave an independent opinion. But that
opinion was formed by the testimonial statements of the analysts who performed
the tests. The State cannot deprive the accused of the right to confront the
analysts by the use of a surrogate witness. The core purpose of the
Confrontation Clause is undermined when the accused cannot confront those whose
statements bear testimony against her.
The majority opinion will have far-reaching effects for future cases
involving laboratory tests that are critical to criminal prosecutions. From
this point forward, a laboratory -- regardless of how many scientists are
employed there -- can designate one forensic expert to testify at all trials,
relying on the tests of fellow scientists in which he has had no involvement.
The incentive will be to select as the expert witness the best pitch person,
the one who appears to have walked out of Central Casting. This approach will
destroy the ability of the accused to have any meaningful opportunity to
cross-examine the persons who are actually bearing testimony against her -- the
actual chemists or analysts conducting the tests.
III.
The majority acknowledges that courts throughout the country are reading Williams
and reaching divergent results. We know that Williams is not the last
word. If the United States Supreme Court does not follow the path taken by the
majority today, and if prosecutors take the approach that providing fewer
confrontation opportunities is the better strategy, then countless convictions
may be jeopardized.
Prudence would dictate that when federal jurisprudence is in a state of
flux, a conservative approach is best. See State v. O’Neill, 193 N.J.
148, 175 (2007) (affording protections to accused under state law when “[t]he
shifting sands of federal jurisprudence provide no certainty concerning the
standard that might apply to the next set of slightly different facts”).
Cautious prosecutors can still place on the stand the chemist or analyst who
actually conducted the test and will not have to worry about a United States
Supreme Court decision upending a conviction.
IV.
In the wake of the majority’s opinion, defendants will no longer have the
opportunity to cross-examine the analysts who actually perform scientific tests
-- no longer have the opportunity to expose errors, lapses, and shortcomings in
the testing process. This is a backward step that, I believe, violates the Sixth Amendment.
For the reasons expressed, I respectfully dissent.
SUPREME
COURT OF NEW JERSEY
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS a/k/a LYNN
MICHAELS, JULIE LYNN, JOLINE
BROOKS, JODIE L. CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
DECIDED August 6, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
|
CHECKLIST
|
AFFIRM
|
REVERSE
|
|
CHIEF JUSTICE RABNER
|
X
|
|
|
JUSTICE LaVECCHIA
|
X
|
|
|
JUSTICE ALBIN
|
|
X
|
|
JUSTICE PATTERSON
|
X
|
|
|
JUSTICE FERNANDEZ-VINA
|
X
|
|
|
JUDGE RODRÍGUEZ (t/a)
|
X
|
|
|
JUDGE CUFF (t/a)
|
X
|
|
|
TOTALS
|
6
|
1
|
1_ Fourteen NMS employees were involved in various aspects of handling and
testing defendant’s blood sample. We refer to these various analysts and
technicians collectively as “analysts” throughout the opinion for simplicity
and because the evidence does not detail the specific role played by each
individual.
2_ As was explained at trial by the State’s expert and author of the report
on defendant’s blood testing, to perform this testing, an analyst injects an
aliquot of the blood to be tested into the gas chromatography/mass spectrometry
machine. In the gas chromatography portion of the test, the sample is vaporized
and passes through a thin 100-foot-long tube that separates the different
compounds in the sample. The machine records the amount of time the compounds
take to pass through the tube. When the compounds emerge from the gas
chromatograph, they are ionized by the mass spectrometer, which records the
molecular weights of the fractions generated. The machine produces graphs that
identify and quantify the compounds in the sample by comparing the time they
take to pass through the tube against the results for the calibration and
control materials, and comparing the compounds’ molecular weights to the
molecular weights of a “library” of known compounds. The data is compared to
runs performed with calibration and control materials to ensure the accurate
operation of the machine.
3_ The citations received by defendant were driving while intoxicated, N.J.S.A.
39:4-50; driving with a revoked license, N.J.S.A. 39:3-40; reckless
driving, N.J.S.A. 39:4-96; failure to keep right, N.J.S.A.
39:4-82; possession of a controlled dangerous substance in a motor vehicle, N.J.S.A.
39:4-49.1; and possession of an open container of alcohol, N.J.S.A.
39:4-51b.
4_ Dr. Barbieri was recognized by the court, without objection, as a
qualified expert in the fields of forensic toxicology and pharmacology.
5_ The New Jersey Constitution provides for like protection to an accused. See
N.J. Const. art. I, ¶ 10 (guaranteeing right of accused “to be
confronted with the witnesses against him”).
6_ Chief Justice Rehnquist and Justice O’Connor concurred in the judgment but
dissented from the majority’s decision to overrule Roberts. Crawford,
supra, 541 U.S. at 69, 124 S. Ct. at 1374, 158 L. Ed.
2d at 203-04 (Rehnquist, C.J., dissenting). The Chief Justice claimed that
the “distinction between testimonial and nontestimonial statements . . . is no
better rooted in history than [the Roberts] doctrine.” Ibid.
7_ As Justice Thomas previously had emphasized in his separate opinion in Melendez-Diaz,
supra, his view was that the testimonial nature of statements depended
on their formality. 557 U.S. at 329, 129 S. Ct. at 2543, 174 L. Ed 2d at 333 (Thomas, J., concurring). His rejection of the articulation of the
primary purpose test in Bullcoming is consistent with that view.
8_ See Davis, supra, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed.2d 224 (addressing consolidated cases Davis v. Washington, where Court
found admissible victim’s 911 call in assault case, and Hammon v. Indiana,
where Court held inadmissible affidavit from domestic violence victim interviewed
by police at crime scene); see also Bryant, supra, 562 U.S.
at __, 131 S. Ct. at 1150, 179 L. Ed. 2d at 101-02 (holding
admissible statement by victim to police about shooter’s identity because
primary purpose was to respond to ongoing emergency).
9_ The primary purpose test also has been used to discern whether statements
in forensic reports were testimonial. In Sweet, supra, 195 N.J.
at 373-74, we distinguished foundational documents from signed and certified
State Laboratory certificates on the basis that the former were not
“testimonial.” Sweet involved Breathalyzer foundational documents,
specifically ampoule testing certificates and breath testing instrument
inspection certificates. Id. at 370-71. We noted that those foundational
records constituted hearsay but were admissible as business records under N.J.R.E.
803(c)(3), and not “testimonial” so as to raise confrontation concerns. Id.
at 372-74. A similar observation was made in State v. Chun when
considering Alcotest blood alcohol test results. 194 N.J. 54, 142, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008). We noted that the foundational documents showing that the device
was in good working condition constituted admissible hearsay as business
records, without risking violation of a defendant’s confrontation rights. Ibid.
10_ Defendant’s argument that, until the trial, she did not know that Dr.
Barbieri did not personally perform the tests rings hollow. First, she should
have known from the documents turned over in discovery. The hundreds of pages
of discovery that constituted the lab documents do not contain Dr. Barbieri’s
name on the pages reporting machine readings. Second, even after discovering
this fact during cross-examination of Dr. Barbieri, defendant still never made
any demand for production of any or all analysts.
11_ Dr. Barbieri also reviewed the chain of custody records as part of his
review and certified that the analysis was performed under chain of custody.
All of the necessary documents were turned over in discovery and are not at
issue in this appeal.
1
D_e_f_e_n_d_a_n_t_’s_
_b_l_o_o_d_ _s_a_m_p_l_e_ _w_a_s_ _s_e_n_t_ _b_y_ _t_h_e_ _l_o_c_a_l_
_p_o_l_i_c_e_ _d_e_p_a_r_t_m_e_n_t_ _t_o_ _N_M_S_ _L_a_b_s_,_ _a_
_p_r_i_v_a_t_e_ _l_a_b_o_r_a_t_o_r_y_ _t_h_a_t_ _p_e_r_f_o_r_m_s_
_a_n_a_l_y_t_i_c_a_l_ _t_e_s_t_i_n_g_ _f_o_r_ _a_ _n_u_m_b_e_r_ _o_f_
_p_r_i_v_a_t_e_ _a_n_d_ _p_u_b_l_i_c_ _e_n_t_i_t_i_e_s_._ _F_o_u_r_t_e_e_n_
_N_M_S_ _a_n_a_l_y_s_t_s_ _w_e_r_e_ _i_n_v_o_l_v_e_d_ _i_n_ _v_a_r_i_o_u_s_
_a_s_p_e_c_t_s_ _o_f_ _h_a_n_d_l_i_n_g_ _a_n_d_ _p_e_r_f_o_r_m_i_n_g_ _g_a_s_
_c_h_r_o_m_a_t_o_g_r_a_p_h_y_/_m_a_s_s_ _s_p_e_c_t_r_o_m_e_t_r_y_
_t_e_s_t_i_n_g_ _o_n_ _d_e_f_e_n_d_a_n_t_’s_ _b_l_o_o_d_ _s_a_m_p_l_e_._
_T_h_e_ _t_e_s_t_i_n_g_ _i_n_d_i_c_a_t_e_d_ _t_h_a_t_ _d_e_f_e_n_d_a_n_t_’s_
_b_l_o_o_d_ _s_a_m_p_l_e_ _c_o_n_t_a_i_n_e_d_ _c_o_c_a_i_n_e_,_ _c_o_c_a_i_n_e_
_d_e_r_i_v_a_t_i_v_e_s_,_ _a_n_d_ _a_l_p_r_a_z_o_l_a_m_,_ _a_n_ _a_c_t_i_v_e_
_i_n_g_r_e_d_i_e_n_t_ _i_n_ _X_a_n_a_x_._ _
T_h_e_
_t_e_s_t_i_n_g_ _o_f_ _d_e_f_e_n_d_a_n_t_’s_ _b_l_o_o_d_ _s_a_m_p_l_e_
_p_r_o_d_u_c_e_d_ _a_p_p_r_o_x_i_m_a_t_e_l_y_ _9_5_0_ _p_a_g_e_s_ _o_f_
_d_a_t_a_,_ _w_h_i_c_h_ _w_a_s_ _p_r_o_v_i_d_e_d_ _t_o_ _D_r_._
_B_a_r_b_i_e_r_i_,_ _a_ _f_o_r_e_n_s_i_c_ _t_o_x_i_c_o_l_o_g_i_s_t_ _a_n_d_
_p_h_a_r_m_a_c_o_l_o_g_i_s_t_ _w_h_o_ _a_l_s_o_ _h_e_l_d_ _t_h_e_ _t_i_t_l_e_s_
_o_f_ _A_s_s_i_s_t_a_n_t_ _L_a_b_o_r_a_t_o_r_y_ _D_i_r_e_c_t_o_r_ _a_n_d_
_T_o_x_i_c_o_l_o_g_y_ _T_e_c_h_n_i_c_a_l_ _L_e_a_d_e_r_ _a_t_ _N_M_S_ _L_a_b_s_._
_D_r_._ _B_a_r_b_i_e_r_i_ _r_e_v_i_e_w_e_d_ _a_l_l_ _o_f_ _t_h_e_ _d_a_t_a_
_a_n_d_ _t_h_e_n_ _w_r_o_t_e_,_ _c_e_r_t_i_f_i_e_d_ _a_n_d_ _s_i_g_n_e_d_ _a_
_r_e_p_o_r_t_,_ _c_o_n_c_l_u_d_i_n_g_ _t_h_a_t_ _d_e_f_e_n_d_a_n_t_’s_
_b_l_o_o_d_ _c_o_n_t_a_i_n_e_d_ _c_o_c_a_i_n_e_ _a_n_d_ _a_l_p_r_a_z_o_l_a_m_
_i_n_ _s_u_c_h_ _q_u_a_n_t_i_t_i_e_s_ _t_h_a_t_ _s_h_e_ _w_o_u_l_d_ _h_a_v_e_
_b_e_e_n_ _i_m_p_a_i_r_e_d_ _a_n_d_ _u_n_f_i_t_ _t_o_ _o_p_e_r_a_t_e_ _a_
_m_o_t_o_r_ _v_e_h_i_c_l_e_ _a_t_ _t_h_e_ _t_i_m_e_ _t_h_e_ _s_a_m_p_l_e_
_w_a_s_ _c_o_l_l_e_c_t_e_d_._ _
D_e_f_e_n_d_a_n_t_
_w_a_s_ _i_n_d_i_c_t_e_d_ _o_n_ _m_u_l_t_i_p_l_e_ _c_h_a_r_g_e_s_
_i_n_c_l_u_d_i_n_g_ _s_e_c_o_n_d_-_d_e_g_r_e_e_ _v_e_h_i_c_u_l_a_r_
_h_o_m_i_c_i_d_e_ _w_h_i_l_e_ _i_n_t_o_x_i_c_a_t_e_d_ _a_n_d_
_t_h_i_r_d_-_d_e_g_r_e_e_ _a_s_s_a_u_l_t_ _b_y_ _a_u_t_o_ _w_h_i_l_e_
_i_n_t_o_x_i_c_a_t_e_d_._ _A_t_ _d_e_f_e_n_d_a_n_t_’s_ _t_r_i_a_l_,_ _D_r_._
_B_a_r_b_i_e_r_i_ _t_e_s_t_i_f_i_e_d_ _a_b_o_u_t_ _t_h_e_ _g_e_n_e_r_a_l_
_p_r_o_c_e_s_s_e_s_ _u_s_e_d_ _b_y_ _N_M_S_ _t_o_ _a_n_a_l_y_z_e_ _b_l_o_o_d_
_s_a_m_p_l_e_s_,_ _t_h_e_ _s_p_e_c_i_f_i_c_ _t_e_s_t_s_ _p_e_r_f_o_r_m_e_d_
_o_n_ _d_e_f_e_n_d_a_n_t_’s_ _b_l_o_o_d_,_ _a_n_d_ _t_h_e_ _r_e_s_u_l_t_s_
_o_f_ _t_h_o_s_e_ _t_e_s_t_s_._ _D_r_._ _B_a_r_b_i_e_r_i_
_a_c_k_n_o_w_l_e_d_g_e_d_ _t_h_a_t_ _t_h_e_r_e_ _i_s_ _a_ _“h_u_m_a_n_
_e_l_e_m_e_n_t_” _t_o_ _t_h_e_ _t_e_s_t_i_n_g_ _p_r_o_c_e_d_u_r_e_s_ _a_n_d_
_t_h_a_t_ _h_e_ _h_a_d_ _n_o_t_ _c_o_n_d_u_c_t_e_d_ _t_h_e_ _t_e_s_t_s_
_h_i_m_s_e_l_f_._ _H_o_w_e_v_e_r_,_ _h_e_ _s_t_a_t_e_d_ _t_h_a_t_ _h_e_ _h_a_d_
_r_e_v_i_e_w_e_d_ _t_h_e_ _v_o_l_u_m_i_n_o_u_s_
_m_a_c_h_i_n_e_-_g_e_n_e_r_a_t_e_d_ _d_a_t_a_ _a_n_d_ _w_a_s_
_s_a_t_i_s_f_i_e_d_ _t_h_a_t_ _t_h_e_ _t_e_s_t_i_n_g_ _h_a_d_ _b_e_e_n_
_d_o_n_e_ _p_r_o_p_e_r_l_y_ _a_n_d_ _t_h_a_t_ _h_i_s_ _i_n_d_e_p_e_n_d_e_n_t_
_r_e_v_i_e_w_ _p_e_r_m_i_t_t_e_d_ _h_i_m_ _t_o_ _c_e_r_t_i_f_y_ _t_h_e_
_r_e_s_u_l_t_s_._ _D_r_._ _B_a_r_b_i_e_r_i_ _o_p_i_n_e_d_ _t_h_a_t_,_ _a_t_
_t_h_e_ _t_i_m_e_ _o_f_ _t_h_e_ _c_o_l_l_i_s_i_o_n_,_ _d_e_f_e_n_d_a_n_t_
_w_a_s_ _i_m_p_a_i_r_e_d_ _b_y_ _t_h_e_ _q_u_a_n_t_i_t_y_ _o_f_
_a_l_p_r_a_z_o_l_a_m_ _a_n_d_ _c_o_c_a_i_n_e_ _f_o_u_n_d_ _i_n_ _h_e_r_
_s_y_s_t_e_m_,_ _a_n_d_ _t_h_a_t_ _s_h_e_ _w_o_u_l_d_ _h_a_v_e_ _b_e_e_n_
_u_n_a_b_l_e_ _t_o_ _d_r_i_v_e_ _s_a_f_e_l_y_._ _
D_e_f_e_n_d_a_n_t_
_o_b_j_e_c_t_e_d_ _t_o_ _t_h_e_ _a_d_m_i_s_s_i_o_n_ _o_f_ _D_r_._
_B_a_r_b_i_e_r_i_’s_ _r_e_p_o_r_t_ _a_s_ _h_e_a_r_s_a_y_,_ _a_n_d_ _t_h_e_
_t_r_i_a_l_ _c_o_u_r_t_ _f_o_u_n_d_ _t_h_e_ _r_e_p_o_r_t_ _a_d_m_i_s_s_i_b_l_e_._
_A_t_ _t_h_e_ _c_l_o_s_e_ _o_f_ _t_h_e_ _S_t_a_t_e_’s_ _c_a_s_e_,_
_d_e_f_e_n_d_a_n_t_ _m_o_v_e_d_ _t_o_ _s_t_r_i_k_e_ _D_r_._
_B_a_r_b_i_e_r_i_’s_ _t_e_s_t_i_m_o_n_y_,_ _c_o_n_t_e_n_d_i_n_g_ _t_h_a_t_
_t_h_e_ _S_t_a_t_e_ _w_a_s_ _r_e_q_u_i_r_e_d_ _t_o_ _p_r_e_s_e_n_t_
_t_e_s_t_i_m_o_n_y_ _f_r_o_m_ _t_h_e_ _p_e_r_s_o_n_s_ _w_h_o_ _a_c_t_u_a_l_l_y_
_c_o_n_d_u_c_t_e_d_ _t_h_e_ _b_l_o_o_d_ _s_a_m_p_l_e_ _t_e_s_t_i_n_g_._ _T_h_e_
_t_r_i_a_l_ _c_o_u_r_t_ _d_e_n_i_e_d_ _t_h_e_ _m_o_t_i_o_n_,_ _n_o_t_i_n_g_
_t_h_a_t_ _a_s_ _t_h_e_ _l_a_b_ _s_u_p_e_r_v_i_s_o_r_,_ _D_r_._
_B_a_r_b_i_e_r_i_ _c_o_u_l_d_ _t_e_s_t_i_f_y_ _a_b_o_u_t_ _t_h_e_
_p_r_o_c_e_d_u_r_e_s_ _t_h_a_t_ _w_e_r_e_ _e_m_p_l_o_y_e_d_ _a_n_d_ _g_i_v_e_
_a_n_ _o_p_i_n_i_o_n_,_ _b_a_s_e_d_ _o_n_ _h_i_s_ _e_x_p_e_r_t_i_s_e_,_ _a_s_
_t_o_ _w_h_a_t_ _c_o_n_c_l_u_s_i_o_n_s_ _s_h_o_u_l_d_ _b_e_ _d_r_a_w_n_
_f_r_o_m_ _t_h_a_t_ _t_e_s_t_i_n_g_._ _
T_h_e_
_j_u_r_y_ _f_o_u_n_d_ _d_e_f_e_n_d_a_n_t_ _g_u_i_l_t_y_ _o_n_ _a_l_l_
_c_o_u_n_t_s_._ _D_e_f_e_n_d_a_n_t_ _m_o_v_e_d_ _f_o_r_ _a_ _n_e_w_
_t_r_i_a_l_,_ _r_a_i_s_i_n_g_,_ _a_m_o_n_g_ _o_t_h_e_r_ _a_r_g_u_m_e_n_t_s_,_
_a_ _S_i_x_t_h_ _A_m_e_n_d_m_e_n_t_ _C_o_n_f_r_o_n_t_a_t_i_o_n_ _C_l_a_u_s_e_
_o_b_j_e_c_t_i_o_n_ _t_o_ _D_r_._ _B_a_r_b_i_e_r_i_’s_ _t_e_s_t_i_m_o_n_y_._
_T_h_e_ _c_o_u_r_t_ _d_e_n_i_e_d_ _t_h_e_ _m_o_t_i_o_n_ _a_n_d_
_s_e_n_t_e_n_c_e_d_ _d_e_f_e_n_d_a_n_t_ _t_o_ _a_n_ _a_g_g_r_e_g_a_t_e_
_e_x_t_e_n_d_e_d_ _t_e_r_m_ _o_f_ _e_i_g_h_t_e_e_n_ _y_e_a_r_s_’
_i_m_p_r_i_s_o_n_m_e_n_t_ _w_i_t_h_ _t_w_e_l_v_e_ _y_e_a_r_s_ _2
a_n_d_ _t_w_o_ _m_o_n_t_h_s_ _o_f_ _p_a_r_o_l_e_
_i_n_e_l_i_g_i_b_i_l_i_t_y_._ _D_e_f_e_n_d_a_n_t_ _a_p_p_e_a_l_e_d_ _h_e_r_
_c_o_n_v_i_c_t_i_o_n_s_ _a_n_d_ _s_e_n_t_e_n_c_e_,_ _c_a_s_t_i_n_g_ _h_e_r_
_a_r_g_u_m_e_n_t_s_ _r_e_g_a_r_d_i_n_g_ _D_r_._ _B_a_r_b_i_e_r_i_’s_
_t_e_s_t_i_m_o_n_y_ _a_s_ _a_ _v_i_o_l_a_t_i_o_n_ _o_f_ _t_h_e_
_C_o_n_f_r_o_n_t_a_t_i_o_n_ _C_l_a_u_s_e_._ _T_h_e_ _A_p_p_e_l_l_a_t_e_
_D_i_v_i_s_i_o_n_ _a_f_f_i_r_m_e_d_,_ _a_n_d_ _t_h_i_s_ _C_o_u_r_t_ _g_r_a_n_t_e_d_
_d_e_f_e_n_d_a_n_t_’s_ _p_e_t_i_t_i_o_n_ _f_o_r_ _c_e_r_t_i_f_i_c_a_t_i_o_n_
_l_i_m_i_t_e_d_ _t_o_ _t_h_e_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _i_s_s_u_e_._ _2_1_4_
_N_._J_._ _1_1_4_ _(_2_0_1_3_)_._ _
HELD: D_e_f_e_n_d_a_n_t_’s_
_c_o_n_f_r_o_n_t_a_t_i_o_n_ _r_i_g_h_t_s_ _w_e_r_e_ _n_o_t_ _v_i_o_l_a_t_e_d_
_b_y_ _t_h_e_ _a_d_m_i_s_s_i_o_n_ _o_f_ _D_r_._ _B_a_r_b_i_e_r_i_’s_
_r_e_p_o_r_t_ _o_r_ _h_i_s_ _t_e_s_t_i_m_o_n_y_ _r_e_g_a_r_d_i_n_g_ _t_h_e_
_b_l_o_o_d_ _t_e_s_t_s_ _a_n_d_ _h_i_s_ _c_o_n_c_l_u_s_i_o_n_s_ _d_r_a_w_n_
_t_h_e_r_e_f_r_o_m_._ _D_r_._ _B_a_r_b_i_e_r_i_ _w_a_s_
_k_n_o_w_l_e_d_g_e_a_b_l_e_ _a_b_o_u_t_ _t_h_e_ _t_e_s_t_i_n_g_
_p_r_o_c_e_s_s_,_ _i_n_d_e_p_e_n_d_e_n_t_l_y_ _v_e_r_i_f_i_e_d_ _t_h_e_
_c_o_r_r_e_c_t_n_e_s_s_ _o_f_ _t_h_e_ _m_a_c_h_i_n_e_-_t_e_s_t_e_d_
_p_r_o_c_e_s_s_e_s_ _a_n_d_ _r_e_s_u_l_t_s_,_ _a_n_d_ _f_o_r_m_e_d_ _a_n_
_i_n_d_e_p_e_n_d_e_n_t_ _c_o_n_c_l_u_s_i_o_n_ _a_b_o_u_t_ _t_h_e_
_r_e_s_u_l_t_s_._ _D_e_f_e_n_d_a_n_t_’s_ _o_p_p_o_r_t_u_n_i_t_y_ _t_o_
_c_r_o_s_s_-_e_x_a_m_i_n_e_ _D_r_._ _B_a_r_b_i_e_r_i_ _s_a_t_i_s_f_i_e_d_
_h_e_r_ _r_i_g_h_t_ _t_o_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _o_n_ _t_h_e_
_f_o_r_e_n_s_i_c_ _e_v_i_d_e_n_c_e_ _p_r_e_s_e_n_t_e_d_ _a_g_a_i_n_s_t_
_h_e_r_._ _
1_._
_T_h_e_ _S_i_x_t_h_ _A_m_e_n_d_m_e_n_t_ _t_o_ _t_h_e_ _U_n_i_t_e_d_
_S_t_a_t_e_s_ _C_o_n_s_t_i_t_u_t_i_o_n_ _p_r_o_v_i_d_e_s_ _i_n_ _p_a_r_t_
_t_h_a_t_,_ _“[_i_]_n_ _a_l_l_ _c_r_i_m_i_n_a_l_ _p_r_o_s_e_c_u_t_i_o_n_s_,_
_t_h_e_ _a_c_c_u_s_e_d_ _s_h_a_l_l_ _e_n_j_o_y_ _t_h_e_ _r_i_g_h_t_ _._ _._ _._
_t_o_ _b_e_ _c_o_n_f_r_o_n_t_e_d_ _w_i_t_h_ _t_h_e_ _w_i_t_n_e_s_s_e_s_
_a_g_a_i_n_s_t_ _h_i_m_._” _T_h_e_ _U_n_i_t_e_d_ _S_t_a_t_e_s_ _S_u_p_r_e_m_e_
_C_o_u_r_t_’s_ _c_u_r_r_e_n_t_ _l_i_n_e_ _o_f_ _c_a_s_e_s_ _o_n_
_C_o_n_f_r_o_n_t_a_t_i_o_n_ _C_l_a_u_s_e_ _j_u_r_i_s_p_r_u_d_e_n_c_e_
_b_e_g_i_n_s_ _w_i_t_h_ _C_r_a_w_f_o_r_d_ _v_._ _W_a_s_h_i_n_g_t_o_n_,_ _5_4_1_
_U_._S_._ _3_6_,_ _1_2_4_ _S_._ _C_t_._ _1_3_5_4_,_ _1_5_8_ _L_._ _E_d_._ _2_d_
_1_7_7_ _(_2_0_0_4_)_,_ _w_h_i_c_h_ _h_e_l_d_ _t_h_a_t_ _a_n_ _a_c_c_u_s_e_d_’s_
_r_i_g_h_t_ _t_o_ _c_o_n_f_r_o_n_t_ _w_i_t_n_e_s_s_e_s_ _a_p_p_l_i_e_s_ _t_o_
_a_l_l_ _o_u_t_-_o_f_-_c_o_u_r_t_ _s_t_a_t_e_m_e_n_t_s_ _t_h_a_t_ _a_r_e_
_“t_e_s_t_i_m_o_n_i_a_l_._” _U_n_d_e_r_ _C_r_a_w_f_o_r_d_,_ _s_u_c_h_
_s_t_a_t_e_m_e_n_t_s_ _a_r_e_ _i_n_a_d_m_i_s_s_i_b_l_e_ _u_n_l_e_s_s_ _t_h_e_
_w_i_t_n_e_s_s_ _i_s_ _u_n_a_v_a_i_l_a_b_l_e_ _t_o_ _t_e_s_t_i_f_y_ _a_n_d_
_t_h_e_ _d_e_f_e_n_d_a_n_t_ _h_a_d_ _a_ _p_r_i_o_r_ _o_p_p_o_r_t_u_n_i_t_y_
_f_o_r_ _c_r_o_s_s_-_e_x_a_m_i_n_a_t_i_o_n_._ _(_p_p_._ _1_6_-_2_0_)_ _
2_._
_S_i_n_c_e_ _2_0_0_4_,_ _t_h_e_ _U_n_i_t_e_d_ _S_t_a_t_e_s_ _S_u_p_r_e_m_e_
_C_o_u_r_t_ _h_a_s_ _c_o_n_s_i_d_e_r_e_d_ _C_r_a_w_f_o_r_d_’s_
_a_p_p_l_i_c_a_t_i_o_n_ _i_n_ _t_h_r_e_e_ _c_a_s_e_s_ _i_n_v_o_l_v_i_n_g_
_f_o_r_e_n_s_i_c_ _r_e_p_o_r_t_s_—M_e_l_e_n_d_e_z_-_D_i_a_z_ _v_._
_M_a_s_s_a_c_h_u_s_e_t_t_s_,_ _5_5_7_ _U_._S_._ _3_0_5_,_ _1_2_9_ _S_._ _C_t_._
_2_5_2_7_,_ _1_7_4_ _L_._ _E_d_._ _2_d_ _3_1_4_ _(_2_0_0_9_)_;_
_B_u_l_l_c_o_m_i_n_g_ _v_._ _N_e_w_ _M_e_x_i_c_o_,_ _5_6_4_ _U_._S_._ _____,_
_1_3_1_ _S_._ _C_t_._ _2_7_0_5_,_ _1_8_0_ _L_._ _E_d_._ _2_d_ _6_1_0_
_(_2_0_1_1_)_;_ _a_n_d_ _W_i_l_l_i_a_m_s_ _v_._ _I_l_l_i_n_o_i_s_,_ _5_6_7_
_U_._S_._ _____,_ _1_3_2_ _S_._ _C_t_._ _2_2_2_1_,_ _1_8_3_ _L_._ _E_d_._ _2_d_
_8_9_ _(_2_0_1_1_)_._ _I_n_ _M_e_l_e_n_d_e_z_-_D_i_a_z_,_ _s_u_p_r_a_,_ _t_h_e_
_S_u_p_r_e_m_e_ _C_o_u_r_t_ _r_e_v_e_r_s_e_d_ _a_ _d_e_f_e_n_d_a_n_t_’s_
_c_o_n_v_i_c_t_i_o_n_ _w_h_e_r_e_ _t_h_e_ _p_r_o_s_e_c_u_t_i_o_n_ _f_a_i_l_e_d_
_t_o_ _p_r_o_d_u_c_e_ _a_n_y_ _a_n_a_l_y_s_t_ _t_o_ _s_u_p_p_o_r_t_ _a_n_d_
_b_e_ _c_r_o_s_s_-_e_x_a_m_i_n_e_d_ _r_e_g_a_r_d_i_n_g_ _t_h_e_
_s_t_a_t_e_m_e_n_t_s_ _c_o_n_t_a_i_n_e_d_ _i_n_ _a_ _f_o_r_e_n_s_i_c_
_d_o_c_u_m_e_n_t_._ _I_n_ _a_ _f_i_v_e_-_t_o_-_f_o_u_r_ _d_e_c_i_s_i_o_n_,_
_t_h_e_ _C_o_u_r_t_ _h_e_l_d_ _t_h_a_t_ _l_a_b_o_r_a_t_o_r_y_
_c_e_r_t_i_f_i_c_a_t_e_s_ _s_e_t_t_i_n_g_ _f_o_r_t_h_ _t_h_e_ _r_e_s_u_l_t_s_
_o_f_ _a_n_a_l_y_s_i_s_ _o_f_ _d_r_u_g_ _s_a_m_p_l_e_s_ _w_e_r_e_
_t_e_s_t_i_m_o_n_i_a_l_ _s_t_a_t_e_m_e_n_t_s_ _a_n_d_ _t_h_e_r_e_f_o_r_e_
_w_e_r_e_ _i_n_a_d_m_i_s_s_i_b_l_e_._ _5_5_7_ _U_._S_._ _a_t_ _3_1_1_,_ _1_2_9_
_S_._ _C_t_._ _a_t_ _2_5_3_2_,_ _1_7_4_ _L_._ _E_d_._ _2_d_ _a_t_ _3_2_2_._
_(_p_p_._ _2_1_-_2_4_)_ _
3_._
_I_n_ _B_u_l_l_c_o_m_i_n_g_,_ _a_n_o_t_h_e_r_ _f_i_v_e_-_t_o_-_f_o_u_r_
_d_e_c_i_s_i_o_n_,_ _t_h_e_ _S_u_p_r_e_m_e_ _C_o_u_r_t_ _c_o_n_s_i_d_e_r_e_d_
_“w_h_e_t_h_e_r_ _t_h_e_ _C_o_n_f_r_o_n_t_a_t_i_o_n_ _C_l_a_u_s_e_
_p_e_r_m_i_t_s_ _t_h_e_ _p_r_o_s_e_c_u_t_i_o_n_ _t_o_ _i_n_t_r_o_d_u_c_e_ _a_
_f_o_r_e_n_s_i_c_ _l_a_b_o_r_a_t_o_r_y_ _r_e_p_o_r_t_ _c_o_n_t_a_i_n_i_n_g_ _a_
_t_e_s_t_i_m_o_n_i_a_l_ _c_e_r_t_i_f_i_c_a_t_i_o_n_ _– _m_a_d_e_ _f_o_r_
_t_h_e_ _p_u_r_p_o_s_e_ _o_f_ _p_r_o_v_i_n_g_ _a_ _p_a_r_t_i_c_u_l_a_r_
_f_a_c_t_ _– _t_h_r_o_u_g_h_ _t_h_e_ _i_n_-_c_o_u_r_t_ _t_e_s_t_i_m_o_n_y_
_o_f_ _a_ _s_c_i_e_n_t_i_s_t_ _w_h_o_ _d_i_d_ _n_o_t_ _s_i_g_n_ _t_h_e_
_c_e_r_t_i_f_i_c_a_t_i_o_n_ _o_r_ _p_e_r_f_o_r_m_ _o_r_ _o_b_s_e_r_v_e_ _t_h_e_
_t_e_s_t_ _r_e_p_o_r_t_e_d_ _i_n_ _t_h_e_ _c_e_r_t_i_f_i_c_a_t_i_o_n_._”
_B_u_l_l_c_o_m_i_n_g_,_ _s_u_p_r_a_,_ _5_6_4_ _U_._S_._ _a_t_ _____,_ _1_3_1_
_S_._ _C_t_._ _a_t_ _2_7_1_0_,_ _1_8_0_ _L_._ _E_d_._ _2_d_ _a_t_
_6_1_5_-_1_6_._ _T_h_e_ _C_o_u_r_t_ _h_e_l_d_ _t_h_a_t_ _t_h_e_
_f_o_r_e_n_s_i_c_ _r_e_p_o_r_t_ _w_a_s_ _i_n_a_d_m_i_s_s_i_b_l_e_,_
_r_e_a_s_o_n_i_n_g_ _t_h_a_t_ _t_h_e_ _t_e_s_t_i_m_o_n_y_ _o_f_ _a_
_s_u_b_s_t_i_t_u_t_e_ _a_n_a_l_y_s_t_ _w_h_o_ _d_i_d_ _n_o_t_ _p_e_r_f_o_r_m_
_o_r_ _o_b_s_e_r_v_e_ _t_h_e_ _t_e_s_t_s_ _a_n_d_ _d_i_d_ _n_o_t_
_c_e_r_t_i_f_y_ _t_h_e_ _r_e_s_u_l_t_s_ _c_o_n_s_t_i_t_u_t_e_d_
_“s_u_r_r_o_g_a_t_e_ _t_e_s_t_i_m_o_n_y_” _t_h_a_t_ _v_i_o_l_a_t_e_d_ _t_h_e_
_d_e_f_e_n_d_a_n_t_’s_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _r_i_g_h_t_s_._ _I_d_._ _a_t_
_____,_ _1_3_1_ _S_._ _C_t_._ _a_t_ _2_7_1_0_,_ _1_8_0_ _L_._ _E_d_._ _2_d_
_a_t_ _6_1_6_._ _J_u_s_t_i_c_e_ _S_o_t_o_m_a_y_o_r_ _w_r_o_t_e_ _a_
_s_e_p_a_r_a_t_e_ _c_o_n_c_u_r_r_i_n_g_ _o_p_i_n_i_o_n_ _t_h_a_t_
_e_m_p_h_a_s_i_z_e_d_ _t_h_e_ _l_i_m_i_t_e_d_ _n_a_t_u_r_e_ _o_f_ _t_h_e_
_C_o_u_r_t_’s_ _h_o_l_d_i_n_g_ _b_y_ _n_o_t_i_n_g_,_ _a_m_o_n_g_ _o_t_h_e_r_
_p_o_i_n_t_s_,_ _t_h_a_t_ _M_e_l_e_n_d_e_z_-_D_i_a_z_ _d_i_d_ _n_o_t_
_s_t_a_n_d_ _f_o_r_ _t_h_e_ _p_r_o_p_o_s_i_t_i_o_n_ _t_h_a_t_ _e_v_e_r_y_ _p_e_r_s_o_n_
_i_d_e_n_t_i_f_i_e_d_ _a_s_ _p_e_r_f_o_r_m_i_n_g_ _s_o_m_e_ _t_a_s_k_ _i_n_
_c_o_n_n_e_c_t_i_o_n_ _w_i_t_h_ _a_ _f_o_r_e_n_s_i_c_ _r_e_p_o_r_t_ _m_u_s_t_
_b_e_ _c_a_l_l_e_d_ _a_s_ _a_ _w_i_t_n_e_s_s_._ _I_d_._ _a_t_ _____,_ _1_3_1_
_S_._ _C_t_._ _a_t_ _2_7_2_2_,_ _1_8_0_ _L_._ _E_d_._ _2_d_ _a_t_
_6_2_8_-_2_3_0_ _(_S_o_t_o_m_a_y_o_r_,_ _J_._,_ _c_o_n_c_u_r_r_i_n_g_)_._
_(_p_p_._ _2_4_-_3_2_)_ _
4_._
_M_o_s_t_ _r_e_c_e_n_t_l_y_,_ _i_n_ _W_i_l_l_i_a_m_s_,_ _a_ _p_l_u_r_a_l_i_t_y_
_o_f_ _t_h_e_ _C_o_u_r_t_ _f_o_u_n_d_ _t_h_a_t_ _a_ _d_e_f_e_n_d_a_n_t_’s_
_r_i_g_h_t_ _o_f_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _w_a_s_ _n_o_t_ _v_i_o_l_a_t_e_d_
_b_y_ _t_h_e_ _t_e_s_t_i_m_o_n_y_ _o_f_ _a_n_ _i_n_d_i_v_i_d_u_a_l_ _w_h_o_
_m_a_t_c_h_e_d_ _a_ _D_N_A_ _p_r_o_f_i_l_e_ _p_r_o_d_u_c_e_d_ _b_y_ _a_
_p_r_i_v_a_t_e_ _l_a_b_o_r_a_t_o_r_y_ _t_o_ _t_h_e_ _d_e_f_e_n_d_a_n_t_’s_
_D_N_A_._ _W_i_l_l_i_a_m_s_,_ _5_6_7_ _U_._S_._ _a_t_ _____,_ _1_3_2_ _S_._
_C_t_._ _a_t_ _2_2_2_7_,_ _1_8_3_ _L_._ _E_d_._ _2_d_ _a_t_ _9_8_._ _N_o_t_a_b_l_y_,_
_t_h_e_ _p_l_u_r_a_l_i_t_y_’s_ _a_n_a_l_y_s_i_s_ _w_a_s_ _c_r_i_t_i_c_i_z_e_d_
_b_y_ _a_ _m_a_j_o_r_i_t_y_ _o_f_ _t_h_e_ _C_o_u_r_t_,_ _i_n_c_l_u_d_i_n_g_
_f_o_u_r_ _d_i_s_s_e_n_t_i_n_g_ _m_e_m_b_e_r_s_,_ _i_d_._ _a_t_ _____,_ _1_3_2_
_S_._ _C_t_._ _a_t_ _2_2_6_5_,_ _1_8_3_ _L_._ _E_d_._ _2_d_ _a_t_ _1_3_9_
_(_K_a_g_a_n_,_ _J_._,_ _d_i_s_s_e_n_t_i_n_g_)_,_ _a_n_d_ _J_u_s_t_i_c_e_
_T_h_o_m_a_s_,_ _w_h_o_ _j_o_i_n_e_d_ _i_n_ _t_h_e_ _p_l_u_r_a_l_i_t_y_’s_
_j_u_d_g_m_e_n_t_,_ _b_u_t_ _d_i_s_a_v_o_w_e_d_ _t_h_e_ _r_e_a_s_o_n_i_n_g_,_
_i_d_._ _a_t_ _____,_ _1_3_2_ _S_._ _C_t_._ _a_t_ _2_2_5_5_,_ _1_8_3_ _L_._
_E_d_._ _2_d_ _a_t_ _1_2_9_ _(_T_h_o_m_a_s_,_ _J_._,_ _c_o_n_c_u_r_r_i_n_g_
_i_n_ _t_h_e_ _j_u_d_g_m_e_n_t_)_._ _B_e_c_a_u_s_e_ _e_a_c_h_ _o_f_ _t_h_e_
_W_i_l_l_i_a_m_s_ _o_p_i_n_i_o_n_s_ _e_m_b_r_a_c_e_s_ _a_ _d_i_f_f_e_r_e_n_t_
_a_p_p_r_o_a_c_h_ _t_o_ _d_e_t_e_r_m_i_n_i_n_g_ _w_h_e_t_h_e_r_ _t_h_e_ _u_s_e_
_o_f_ _f_o_r_e_n_s_i_c_ _e_v_i_d_e_n_c_e_ _v_i_o_l_a_t_e_s_ _t_h_e_
_C_o_n_f_r_o_n_t_a_t_i_o_n_ _C_l_a_u_s_e_,_ _a_n_d_ _b_e_c_a_u_s_e_ _a_
_m_a_j_o_r_i_t_y_ _o_f_ _t_h_e_ _S_u_p_r_e_m_e_ _C_o_u_r_t_ _e_x_p_r_e_s_s_l_y_
_d_i_s_a_g_r_e_e_d_ _w_i_t_h_ _t_h_e_ _r_a_t_i_o_n_a_l_e_ _o_f_ _t_h_e_
_p_l_u_r_a_l_i_t_y_,_ _t_h_e_r_e_ _i_s_ _n_o_ _n_a_r_r_o_w_ _r_u_l_e_ _t_h_a_t_
_t_h_i_s_ _C_o_u_r_t_ _c_a_n_ _d_i_s_c_e_r_n_ _f_r_o_m_ _W_i_l_l_i_a_m_s_
_a_n_d_ _t_h_u_s_ _W_i_l_l_i_a_m_s_’s_ _f_o_r_c_e_,_ _a_s_
_p_r_e_c_e_d_e_n_t_,_ _i_s_ _a_t_ _b_e_s_t_ _u_n_c_l_e_a_r_._ _T_h_e_
_C_o_u_r_t_ _t_h_u_s_ _t_u_r_n_s_ _t_o_ _t_h_e_ _p_r_e_-_W_i_l_l_i_a_m_s_
_c_a_s_e_s_ _f_o_r_ _m_o_r_e_ _r_e_l_i_a_b_l_e_ _g_u_i_d_a_n_c_e_ _o_n_
_c_o_n_f_r_o_n_t_a_t_i_o_n_ _r_i_g_h_t_s_._ _(_p_p_._ _3_2_-_4_3_)_ _
5_._
_A_p_p_l_y_i_n_g_ _p_r_e_-_W_i_l_l_i_a_m_s_ _j_u_r_i_s_p_r_u_d_e_n_c_e_,_
_t_h_e_ _C_o_u_r_t_ _o_b_s_e_r_v_e_s_ _t_h_a_t_ _n_e_i_t_h_e_r_
_M_e_l_e_n_d_e_z_-_D_i_a_z_ _n_o_r_ _B_u_l_l_c_o_m_i_n_g_ _r_e_q_u_i_r_e_s_
_t_h_a_t_ _e_v_e_r_y_ _a_n_a_l_y_s_t_ _i_n_v_o_l_v_e_d_ _i_n_ _a_
_t_e_s_t_i_n_g_ _p_r_o_c_e_s_s_ _m_u_s_t_ _t_e_s_t_i_f_y_ _i_n_ _o_r_d_e_r_
_t_o_ _a_d_m_i_t_ _a_ _f_o_r_e_n_s_i_c_ _r_e_p_o_r_t_ _i_n_t_o_
_e_v_i_d_e_n_c_e_ _a_n_d_ _s_a_t_i_s_f_y_ _c_o_n_f_r_o_n_t_a_t_i_o_n_
_r_i_g_h_t_s_._ _N_o_r_ _d_o_ _t_h_e_ _c_a_s_e_s_ _s_u_g_g_e_s_t_ _t_h_a_t_
_t_h_e_ _p_r_i_m_a_r_y_ _a_n_a_l_y_s_t_ _i_n_v_o_l_v_e_d_ _i_n_ _t_h_e_
_o_r_i_g_i_n_a_l_ _t_e_s_t_i_n_g_ _m_u_s_t_ _t_e_s_t_i_f_y_ _w_h_e_n_ _a_
_d_i_f_f_e_r_e_n_t_,_ _s_u_f_f_i_c_i_e_n_t_l_y_ _k_n_o_w_l_e_d_g_e_a_b_l_e_
_e_x_p_e_r_t_ _i_s_ _a_v_a_i_l_a_b_l_e_ _t_o_ _t_e_s_t_i_f_y_._
_M_o_r_e_o_v_e_r_,_ _t_h_e_ _C_o_u_r_t_ _n_o_t_e_s_ _t_h_a_t_ _i_t_ _w_o_u_l_d_
_t_a_k_e_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _l_a_w_ _t_o_ _a_ _l_e_v_e_l_ _t_h_a_t_
_i_s_ _n_o_t_ _o_n_l_y_ _i_m_p_r_a_c_t_i_c_a_l_,_ _b_u_t_,_ _e_q_u_a_l_l_y_
_i_m_p_o_r_t_a_n_t_l_y_,_ _i_s_ _i_n_c_o_n_s_i_s_t_e_n_t_ _w_i_t_h_ _p_r_i_o_r_
_l_a_w_ _a_d_d_r_e_s_s_i_n_g_ _t_h_e_ _a_d_m_i_s_s_i_b_i_l_i_t_y_ _o_f_ _a_n_
_e_x_p_e_r_t_’s_ _t_e_s_t_i_m_o_n_y_ _i_n_ _r_e_s_p_e_c_t_ _o_f_ _t_h_e_
_s_u_b_s_t_a_n_c_e_ _o_f_ _u_n_d_e_r_l_y_i_n_g_ _i_n_f_o_r_m_a_t_i_o_n_ _3
t_h_a_t_ _h_e_ _o_r_ _s_h_e_ _u_s_e_d_ _i_n_ _f_o_r_m_i_n_g_
_h_i_s_ _o_r_ _h_e_r_ _o_p_i_n_i_o_n_._ _B_y_ _w_a_y_ _o_f_
_b_a_c_k_g_r_o_u_n_d_,_ _t_h_e_ _C_o_u_r_t_ _n_o_t_e_s_ _t_h_a_t_,_ _i_n_
_d_e_t_e_r_m_i_n_i_n_g_ _w_h_e_n_ _t_h_e_ _f_a_c_t_s_ _u_n_d_e_r_l_y_i_n_g_ _a_
_f_o_r_e_n_s_i_c_ _e_x_p_e_r_t_ _o_p_i_n_i_o_n_ _m_a_y_ _b_e_
_d_i_s_c_l_o_s_e_d_ _t_o_ _t_h_e_ _j_u_r_y_,_ _N_e_w_ _J_e_r_s_e_y_’s_
_e_v_i_d_e_n_c_e_ _c_a_s_e_ _l_a_w_ _h_a_s_ _f_o_c_u_s_e_d_ _o_n_
_w_h_e_t_h_e_r_ _t_h_e_ _w_i_t_n_e_s_s_ _i_s_ _k_n_o_w_l_e_d_g_e_a_b_l_e_
_a_b_o_u_t_ _t_h_e_ _p_a_r_t_i_c_u_l_a_r_ _i_n_f_o_r_m_a_t_i_o_n_ _u_s_e_d_
_i_n_ _f_o_r_m_i_n_g_ _t_h_e_ _o_p_i_n_i_o_n_ _t_o_ _w_h_i_c_h_ _h_e_ _o_r_
_s_h_e_ _i_s_ _t_e_s_t_i_f_y_i_n_g_ _a_n_d_ _h_a_s_ _a_ _m_e_a_n_s_ _t_o_
_v_e_r_i_f_y_ _t_h_e_ _u_n_d_e_r_l_y_i_n_g_ _i_n_f_o_r_m_a_t_i_o_n_ _e_v_e_n_
_i_f_ _h_e_ _o_r_ _s_h_e_ _w_a_s_ _n_o_t_ _t_h_e_ _p_r_i_m_a_r_y_
_c_r_e_a_t_o_r_ _o_f_ _t_h_e_ _d_a_t_a_._ _S_u_c_h_ _l_a_w_ _i_s_
_c_o_n_s_i_s_t_e_n_t_ _w_i_t_h_ _t_h_e_ _p_r_i_n_c_i_p_l_e_ _t_h_a_t_ _a_
_k_n_o_w_l_e_d_g_e_a_b_l_e_ _e_x_p_e_r_t_ _w_h_o_ _i_s_ _s_o_m_e_o_n_e_ _
o_t_h_e_r_
_t_h_a_n_ _t_h_e_ _p_r_i_m_a_r_y_ _a_n_a_l_y_s_t_ _w_h_o_ _c_o_n_d_u_c_t_e_d_
_a_ _f_o_r_e_n_s_i_c_ _t_e_s_t_ _m_a_y_ _t_e_s_t_i_f_y_ _t_o_ _a_n_
_o_p_i_n_i_o_n_ _r_e_g_a_r_d_i_n_g_ _t_e_s_t_i_n_g_ _r_e_s_u_l_t_s_,_ _w_h_e_n_
_t_h_o_s_e_ _r_e_s_u_l_t_s_ _h_a_v_e_ _b_e_e_n_ _g_e_n_e_r_a_t_e_d_ _b_y_
_d_e_m_o_n_s_t_r_a_b_l_y_ _c_a_l_i_b_r_a_t_e_d_ _i_n_s_t_r_u_m_e_n_t_s_._
_(_p_p_._ _4_3_-_4_8_)_ _
6_._
_T_h_e_ _C_o_u_r_t_ _t_h_e_n_ _e_x_a_m_i_n_e_s_ _d_e_f_e_n_d_a_n_t_’s_
_a_r_g_u_m_e_n_t_ _t_h_a_t_ _h_e_r_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _r_i_g_h_t_s_
_w_e_r_e_ _v_i_o_l_a_t_e_d_ _b_y_ _D_r_._ _B_a_r_b_i_e_r_i_’s_
_t_e_s_t_i_m_o_n_y_ _a_n_d_ _t_h_e_ _a_d_m_i_s_s_i_o_n_ _o_f_ _h_i_s_
_c_e_r_t_i_f_i_e_d_ _r_e_p_o_r_t_._ _U_n_l_i_k_e_ _i_n_
_M_e_l_e_n_d_e_z_-_D_i_a_z_,_ _w_h_e_r_e_ _n_o_ _w_i_t_n_e_s_s_ _w_a_s_
_o_f_f_e_r_e_d_ _t_o_ _t_e_s_t_i_f_y_ _t_o_ _t_h_e_ _s_t_a_t_e_m_e_n_t_s_
_c_o_n_t_a_i_n_e_d_ _i_n_ _t_h_e_ _f_o_r_e_n_s_i_c_ _d_o_c_u_m_e_n_t_ _t_h_a_t_
_w_a_s_ _a_d_m_i_t_t_e_d_ _i_n_t_o_ _e_v_i_d_e_n_c_e_,_ _h_e_r_e_ _t_h_e_
_r_e_p_o_r_t_ _w_a_s_ _a_d_m_i_t_t_e_d_ _t_h_r_o_u_g_h_ _t_h_e_ _l_i_v_e_
_t_e_s_t_i_m_o_n_y_ _o_f_ _D_r_._ _B_a_r_b_i_e_r_i_,_ _t_h_e_ _p_e_r_s_o_n_
_w_h_o_ _p_r_e_p_a_r_e_d_,_ _s_i_g_n_e_d_,_ _a_n_d_ _c_e_r_t_i_f_i_e_d_ _t_h_e_
_r_e_p_o_r_t_,_ _a_n_d_ _D_r_._ _B_a_r_b_i_e_r_i_ _w_a_s_ _a_v_a_i_l_a_b_l_e_
_f_o_r_ _c_r_o_s_s_-_e_x_a_m_i_n_a_t_i_o_n_._ _I_n_ _a_d_d_i_t_i_o_n_,_ _t_h_e_
_f_o_r_e_n_s_i_c_ _r_e_p_o_r_t_ _t_h_a_t_ _t_h_e_ _S_u_p_r_e_m_e_ _C_o_u_r_t_
_r_e_j_e_c_t_e_d_ _i_n_ _B_u_l_l_c_o_m_i_n_g_ _h_a_d_ _b_e_e_n_
_a_d_m_i_t_t_e_d_ _t_h_r_o_u_g_h_ _t_h_e_ _t_e_s_t_i_m_o_n_y_ _o_f_ _a_
_c_o_-_a_n_a_l_y_s_t_ _o_r_ _“s_u_r_r_o_g_a_t_e_” _w_h_o_ _d_i_d_ _n_o_t_
_s_e_r_v_e_ _a_s_ _s_u_p_e_r_v_i_s_o_r_ _o_r_ _r_e_v_i_e_w_e_r_
_r_e_s_p_o_n_s_i_b_l_e_ _f_o_r_ _c_e_r_t_i_f_y_i_n_g_ _t_h_e_ _r_e_s_u_l_t_s_._
_H_e_r_e_,_ _t_h_e_ _C_o_u_r_t_ _a_c_c_e_p_t_s_ _t_h_a_t_ _D_r_._
_B_a_r_b_i_e_r_i_’s_ _r_e_p_o_r_t_ _w_a_s_ _t_e_s_t_i_m_o_n_i_a_l_._
_H_o_w_e_v_e_r_,_ _D_r_._ _B_a_r_b_i_e_r_i_ _s_u_p_e_r_v_i_s_e_d_ _t_h_e_
_a_n_a_l_y_s_t_s_ _w_h_o_ _p_e_r_f_o_r_m_e_d_ _t_h_e_ _t_e_s_t_s_,_ _w_a_s_
_q_u_a_l_i_f_i_e_d_ _a_s_ _a_n_ _e_x_p_e_r_t_ _i_n_ _t_h_e_ _r_e_l_e_v_a_n_t_
_s_u_b_j_e_c_t_ _a_r_e_a_s_,_ _a_n_a_l_y_z_e_d_ _t_h_e_
_m_a_c_h_i_n_e_-_g_e_n_e_r_a_t_e_d_ _d_a_t_a_,_ _a_n_d_ _p_r_o_d_u_c_e_d_
_a_n_d_ _c_e_r_t_i_f_i_e_d_ _t_h_e_ _t_e_s_t_i_m_o_n_i_a_l_ _r_e_p_o_r_t_ _i_n_
_i_s_s_u_e_._ _A_s_ _t_h_e_ _r_e_v_i_e_w_e_r_ _o_f_ _t_h_e_ _t_e_s_t_i_n_g_
_p_r_o_c_e_s_s_ _a_n_d_ _t_h_e_ _a_u_t_h_o_r_ _o_f_ _t_h_e_ _r_e_p_o_r_t_,_
_i_t_ _w_a_s_ _p_r_o_p_e_r_ _f_o_r_ _D_r_._ _B_a_r_b_i_e_r_i_ _t_o_
_t_e_s_t_i_f_y_ _t_o_ _i_t_s_ _c_o_n_t_e_n_t_s_ _a_n_d_ _t_o_ _a_n_s_w_e_r_
_q_u_e_s_t_i_o_n_s_ _a_b_o_u_t_ _t_h_e_ _t_e_s_t_i_n_g_ _i_t_
_r_e_p_o_r_t_e_d_._ _(_p_p_._ _4_9_-_6_2_)_._ _
7_._
_I_n_ _r_e_s_p_o_n_s_e_ _t_o_ _t_h_e_ _d_i_s_s_e_n_t_i_n_g_ _o_p_i_n_i_o_n_,_
_t_h_e_ _C_o_u_r_t_ _e_x_p_l_a_i_n_s_ _t_h_a_t_ _D_r_._ _B_a_r_b_i_e_r_i_
_w_a_s_ _n_o_t_ _m_e_r_e_l_y_ _r_e_p_e_a_t_i_n_g_ _t_h_e_ _f_i_n_d_i_n_g_s_
_a_n_d_ _c_o_n_c_l_u_s_i_o_n_s_ _o_f_ _t_h_e_ _a_n_a_l_y_s_t_s_ _w_h_o_
_c_o_n_d_u_c_t_e_d_ _t_h_e_ _t_e_s_t_i_n_g_._ _R_a_t_h_e_r_,_ _t_h_e_
_f_i_n_d_i_n_g_s_ _a_n_d_ _c_o_n_c_l_u_s_i_o_n_s_ _c_o_n_t_a_i_n_e_d_ _i_n_
_t_h_e_ _r_e_p_o_r_t_ _a_n_d_ _t_o_ _w_h_i_c_h_ _h_e_ _t_e_s_t_i_f_i_e_d_
_w_e_r_e_ _h_i_s_ _o_w_n_._ _A_ _t_r_u_l_y_ _i_n_d_e_p_e_n_d_e_n_t_
_r_e_v_i_e_w_e_r_ _o_r_ _s_u_p_e_r_v_i_s_o_r_ _o_f_ _t_e_s_t_i_n_g_
_r_e_s_u_l_t_s_ _c_a_n_ _t_e_s_t_i_f_y_ _t_o_ _t_h_o_s_e_ _r_e_s_u_l_t_s_
_a_n_d_ _t_o_ _h_i_s_ _o_r_ _h_e_r_ _c_o_n_c_l_u_s_i_o_n_s_ _a_b_o_u_t_
_t_h_o_s_e_ _r_e_s_u_l_t_s_,_ _w_i_t_h_o_u_t_ _v_i_o_l_a_t_i_n_g_ _a_
_d_e_f_e_n_d_a_n_t_’s_ _c_o_n_f_r_o_n_t_a_t_i_o_n_ _r_i_g_h_t_s_,_ _i_f_
_t_h_e_ _t_e_s_t_i_f_y_i_n_g_ _w_i_t_n_e_s_s_ _i_s_ _k_n_o_w_l_e_d_g_e_a_b_l_e_
_a_b_o_u_t_ _t_h_e_ _t_e_s_t_i_n_g_ _p_r_o_c_e_s_s_,_ _h_a_s_
_i_n_d_e_p_e_n_d_e_n_t_l_y_ _v_e_r_i_f_i_e_d_ _t_h_e_ _c_o_r_r_e_c_t_n_e_s_s_
_o_f_ _t_h_e_ _m_a_c_h_i_n_e_-_t_e_s_t_e_d_ _p_r_o_c_e_s_s_ _a_n_d_
_r_e_s_u_l_t_s_,_ _a_n_d_ _h_a_s_ _f_o_r_m_e_d_ _a_n_ _i_n_d_e_p_e_n_d_e_n_t_
_c_o_n_c_l_u_s_i_o_n_ _a_b_o_u_t_ _t_h_e_ _r_e_s_u_l_t_s_._
_T_e_s_t_i_m_o_n_i_a_l_ _f_a_c_t_s_ _c_a_n_ _“b_e_l_o_n_g_” _t_o_ _m_o_r_e_
_t_h_a_n_ _o_n_e_ _p_e_r_s_o_n_ _i_f_ _t_h_e_ _v_e_r_i_f_i_c_a_t_i_o_n_ _a_n_d_
_t_r_u_l_y_ _i_n_d_e_p_e_n_d_e_n_t_ _r_e_v_i_e_w_ _d_e_s_c_r_i_b_e_d_
_a_b_o_v_e_ _a_r_e_ _p_e_r_f_o_r_m_e_d_ _a_n_d_ _s_e_t_ _f_o_r_t_h_ _o_n_
_t_h_e_ _r_e_c_o_r_d_ _b_y_ _t_h_e_ _t_e_s_t_i_f_y_i_n_g_ _w_i_t_n_e_s_s_._
_(_p_p_._ _6_2_-_6_9_)_._ _
T_h_e_
_j_u_d_g_m_e_n_t_ _o_f_ _t_h_e_ _A_p_p_e_l_l_a_t_e_ _D_i_v_i_s_i_o_n_ _i_s_ _AFFIRMED._
_
JUSTICE
ALBIN, DISSENTING, e_x_p_r_e_s_s_e_s_ _t_h_e_ _v_i_e_w_ _t_h_a_t_ _t_h_e_
_S_i_x_t_h_ _A_m_e_n_d_m_e_n_t_’s_ _C_o_n_f_r_o_n_t_a_t_i_o_n_ _C_l_a_u_s_e_
_b_a_r_s_ _t_h_e_ _a_d_m_i_s_s_i_o_n_ _o_f_ _t_h_i_s_ _f_o_r_e_n_s_i_c_ _r_e_p_o_r_t_
_a_n_d_ _t_h_e_ _t_e_s_t_i_m_o_n_y_ _o_f_ _t_h_e_ _e_x_p_e_r_t_ _b_e_c_a_u_s_e_
_t_h_e_ _S_t_a_t_e_ _d_i_d_ _n_o_t_ _p_r_o_d_u_c_e_ _f_o_r_
_c_r_o_s_s_-_e_x_a_m_i_n_a_t_i_o_n_ _t_h_e_ _a_n_a_l_y_s_t_(_s_)_ _w_h_o_
_a_c_t_u_a_l_l_y_ _p_e_r_f_o_r_m_e_d_ _t_h_e_ _t_e_s_t_ _o_n_
_d_e_f_e_n_d_a_n_t_’s_ _b_l_o_o_d_._ _
CHIEF
JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and
CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion. 1
SUPREME COURT OF NEW JERSEY
A-69
September Term 2012
072106
STATE
OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE
L. MICHAELS a/k/a LYNN MICHAELS, JULIE LYNN, JOLINE BROOKS, JODIE L. CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
Argued
March 4, 2014 – Decided August 6, 2014
On
certification to the Superior Court, Appellate Division.
Gary
A. Kraemer argued the cause for appellant (Daggett, Kraemer & Gjelsvik,
attorneys; Mr. Kraemer and George T. Daggett, on the briefs).
Frank
Muroski, Deputy Attorney General, argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New Jersey, attorney; Kenneth A. Burden and
Frank J. Ducoat, Deputies Attorney General, of counsel; Mr. Muroski, Mr.
Burden, and Mr. Ducoat, on the briefs).
JUSTICE
LaVECCHIA delivered the opinion of the Court.
Defendant
Julie Michaels was charged with second-degree vehicular homicide, third-degree
assault by auto, and four other related charges, as well as motor vehicle
citations, including driving while intoxicated, reckless driving, possession of
a 2
controlled dangerous substance in a motor
vehicle, and possession of an open container of alcohol. Laboratory results of
gas chromatography/mass spectrometry tests performed on defendant’s blood
sample, which was drawn at a hospital the evening of her motor vehicle
accident, revealed the presence of cocaine, alprazolam (an active ingredient of
Xanax), and benzoethylene (a cocaine metabolite).
At
trial, the State introduced testimony from Edward Barbieri, Ph.D., an assistant
supervisor and toxicology technical leader from the private laboratory that had
performed the testing on defendant’s blood sample and issued a report
certifying the test results. Dr. Barbieri was responsible for supervising the
technicians and analysts who were involved in the gas chromatography/mass
spectrometry testing. He also was responsible for their adherence to the
laboratory’s policies and protocols for the testing procedures. He had reviewed
the test results and satisfied himself that the test data accurately identified
and quantified the substances found in defendant’s blood, and he had signed and
certified the laboratory results set forth in the report. Over defendant’s
objection, the report was admitted into evidence without the testimony of the
fourteen individuals who had performed various tasks associated with the
testing procedures. A jury convicted defendant on all counts, and the Appellate
Division affirmed defendant’s conviction. 3
We granted certification in this matter to
consider defendant’s argument that her Sixth Amendment confrontation rights
were violated because the laboratory report was admitted, although defendant
had not had the opportunity to confront each laboratory employee who
participated in the testing that generated the results contained in the report.
We now hold that the admission of the laboratory report did not violate
defendant’s confrontation rights. The laboratory supervisor -- who testified
and was available for cross-examination -- was knowledgeable about the testing
process that he was responsible for supervising. He had reviewed the
machine-generated data from the testing, had determined that the results
demonstrated that defendant had certain drugs present in her system, and had
certified the results in a report that he had prepared and signed.
We
recognize that the forensic report in issue is “testimonial” and that it is the
type of document subject to the Confrontation Clause. See Bullcoming v. New
Mexico, 564 U.S. __, __, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610, 624 (2011)
(determining that signed and certified laboratory report was formalized
sufficiently to be characterized as testimonial); cf. State v. Sweet, 195 N.J.
357, 373-74 (2008) (noting testimonial nature of signed and certified New
Jersey State Laboratory certificates prepared for use in State prosecution),
cert. 4
denied, 557 U.S. 934, 129 S. Ct. 2858, 174
L. Ed. 2d 601 (2009). However, in this matter we join the many courts that have
concluded that a defendant’s confrontation rights are not violated if a
forensic report is admitted at trial and only the supervisor/reviewer testifies
and is available for cross-examination, when the supervisor is knowledgeable
about the testing process, reviews scientific testing data produced, concludes
that the data indicates the presence of drugs, and prepares, certifies, and
signs a report setting forth the results of the testing. In examining the
testimony and documentary evidence challenged in this matter, we do not find it
to be equivalent to the “surrogate testimony” that the United States Supreme
Court found problematic in Bullcoming, supra, 564 U.S. at __, 131 S. Ct. at
2715-16, 180 L. Ed. 2d at 621-22.
Finding
no denial of defendant’s confrontation rights in this proceeding, we affirm
defendant’s conviction.
I.
A.
On
March 3, 2008, at approximately 10:15 p.m., defendant caused a two-car
collision. Danielo Diaz, the driver of the second car, was driving northbound
on Route 23 in Hardyston Township. There, Route 23 is a two-lane road with a
double yellow center line and a speed limit of forty-five miles per hour.
Defendant was driving southbound but swerved into the 5
northbound lane as she reached the crest of
a hill. Diaz testified that he saw headlights approaching on his side of the
road, but had no time to react before defendant’s vehicle struck his vehicle
head-on.
Sergeant
John Broderick, the police officer responding to the scene, found defendant’s
car straddling the yellow line facing southbound. Diaz’s car was situated
perpendicular to defendant’s. Diaz and his passenger, Dylan Vecchiarelli,
appeared to be injured and in pain. Defendant, who was slumped in her seat,
answered Broderick’s questions in a slurred voice. Her eyes were partly closed.
When she exited her vehicle, she did not seem to be in pain although her ankle
appeared to Broderick to be broken. Defendant seemed to Broderick to be under
the influence of drugs or alcohol.
Defendant
was taken by ambulance to St. Clare’s Hospital in Sussex County where she was
met by Detective Karl Ludwig, who had been dispatched to obtain a blood sample
from her. Although defendant initially informed Ludwig that she was Jodie
Callaway of Moscow, Iowa, it was later determined that she was Julie Michaels
of Wayne, New Jersey, and that Jodie Callaway was her sister. When asked what
had happened, defendant told Ludwig that she had been on the wrong side of the
road and hit a car. Ludwig noted that defendant’s eyes were red and droopy, her
speech was slurred, and she was lethargic. Defendant gave 6
permission for blood samples to be taken
but would not sign the consent form. She informed Ludwig that she had not used
any alcohol that night, but had taken prescription Xanax at 3:00 p.m. She also
stated that her blood would test positive for cocaine because she had used it
four days earlier. Defendant later altered her statement, telling Ludwig that,
on the night of the accident, she had taken Xanax that belonged to her sister
and had used cocaine.
Meanwhile,
Diaz and Vecchiarelli were transported by helicopter from the scene of the
accident to a trauma hospital. Diaz remained in the hospital for about a month
for injuries that included a fractured cheekbone and nose, a broken femur with
an open wound, and bruised lungs. Vecchiarelli’s injuries included multiple
fractures of the skull, a spinal cord fracture, a partial rupture of the
thoracic aorta, lacerations of the spleen, and a broken femur. Despite weeks of
intensive treatment for his serious injuries, Vecchiarelli’s condition
deteriorated. He died from his injuries on April 2, 2008.
Defendant’s
blood sample was sent by the Hardyston Police Department to NMS Labs, a private
laboratory in Willow Grove, Pennsylvania, that performs analytical testing for
a number of private and public entities. NMS was instructed to test the sample
for the presence of alcohol and drugs, and to determine the quantities of any
substances found. Tests were performed by 7
approximately fourteen NMS analysts.1
Specifically, small samples, or aliquots, drawn from the original sample were
screened for alcohol and a broad range of drugs. Computer analysis of the
results of the screening tests indicated presumptive positives for cocaine
metabolites, benzodiazepines, and marijuana products. New aliquots from the
blood sample were analyzed using a combined gas chromatography/mass
spectrometry machine.2 That testing showed that defendant’s blood sample
contained cocaine, benzoethylene (a cocaine metabolite), and alprazolam (a type
of benzodiazepine that is the active ingredient in Xanax). Defendant’s blood
tested negative for
1 Fourteen NMS
employees were involved in various aspects of handling and testing defendant’s
blood sample. We refer to these various analysts and technicians collectively
as “analysts” throughout the opinion for simplicity and because the evidence does
not detail the specific role played by each individual.
2 As was explained at trial by the State’s expert and author
of the report on defendant’s blood testing, to perform this testing, an analyst
injects an aliquot of the blood to be tested into the gas chromatography/mass
spectrometry machine. In the gas chromatography portion of the test, the sample
is vaporized and passes through a thin 100-foot-long tube that separates the
different compounds in the sample. The machine records the amount of time the
compounds take to pass through the tube. When the compounds emerge from the gas
chromatograph, they are ionized by the mass spectrometer, which records the
molecular weights of the fractions generated. The machine produces graphs that
identify and quantify the compounds in the sample by comparing the time they
take to pass through the tube against the results for the calibration and
control materials, and comparing the compounds’ molecular weights to the
molecular weights of a “library” of known compounds. The data is compared to
runs performed with calibration and control materials to ensure the accurate
operation of the machine. 8
marijuana.
The
testing of defendant’s blood sample produced approximately 950 pages of data,
which was provided to Dr. Barbieri, a forensic toxicologist and pharmacologist
who held three titles at NMS: Forensic Toxicologist, Toxicology Technical
Leader, and Assistant Laboratory Director. Dr. Barbieri reviewed all the data
in order to satisfy himself that (1) the testing had been done according to
standard operating procedures, and (2) the results were correct. Dr. Barbieri
wrote, and then certified and signed, a report stating that defendant’s blood
contained 270 ng/mL of alprazalam, 140 ng/mL of cocaine, and 2500 ng/mL of benzoethylene.
Dr. Barbieri’s report concluded that the presence of those quantities of drugs
in defendant’s blood would have caused her to be impaired and unfit to operate
a motor vehicle at the time the blood sample was collected.
B.
In
October 2008, defendant was indicted on charges of second-degree vehicular
homicide while intoxicated, N.J.S.A. 39:4-50, N.J.S.A. 2C:11-5 (count one);
third-degree assault by auto while intoxicated, N.J.S.A. 39:4-50, N.J.S.A.
2C:12-1(c)(2) (count two); third-degree causing death while driving unlicensed
or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A. 2C:40-22(a) (count
three); fourth-degree causing serious bodily injury 9
while driving unlicensed or with a
suspended license, N.J.S.A. 39:3-40, N.J.S.A. 2C:40-22(a) (count four);
third-degree giving false information to a law enforcement officer, N.J.S.A.
2C:29-3(b)(4) (count five); and third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a) (count six). Defendant also previously
had been issued six motor vehicle citations in connection with the collision.3
3 The citations
received by defendant were driving while intoxicated, N.J.S.A. 39:4-50; driving
with a revoked license, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96;
failure to keep right, N.J.S.A. 39:4-82; possession of a controlled dangerous
substance in a motor vehicle, N.J.S.A. 39:4-49.1; and possession of an open
container of alcohol, N.J.S.A. 39:4-51b.
4 Dr. Barbieri was recognized by the court, without objection,
as a qualified expert in the fields of forensic toxicology and pharmacology.
Defendant’s
in limine motions to dismiss the indictment were denied. The case was tried
over fourteen days in February and March 2011. The State presented testimony
from Diaz, two other drivers who had observed the collision and defendant’s
driving, several police officers including Broderick and Ludwig, the doctor who
had treated Vecchiarelli prior to his death, the supervising nurse who had
treated defendant upon her arrival at the hospital and who had drawn the blood
sample, and Dr. Barbieri of NMS.4 Defendant presented two witnesses but did not
testify on her own behalf.
Dr.
Barbieri testified about the general processes used by 10
NMS to analyze blood samples, the specific
tests performed on defendant’s blood, and the results of those tests. Dr.
Barbieri acknowledged that there is a “human element” to the testing procedures
and that he had not conducted the tests himself. However, he stated that he
personally had reviewed the voluminous machine-generated data and was satisfied
that the testing had been done properly and that his independent review
permitted him to certify the results. Dr. Barbieri opined that, at the time of
the collision, defendant’s concentration, judgment, response time,
coordination, and sense of caution would have been impaired by the quantity of
alprazalam and cocaine found in her system, and that she would have been unable
to drive safely.
Defendant
objected to the admission of Dr. Barbieri’s report as hearsay; however, the
trial court determined that no applicable law compelled its exclusion. At the
close of the State’s case, defendant moved to strike Dr. Barbieri’s testimony,
contending that the State was required to present testimony from the persons
who actually conducted the testing and that Dr. Barbieri did not personally
perform, or assist in performing, the tests that formed the basis of his report
and testimony. The trial court denied the motion to strike Dr. Barbieri’s
testimony, specifically noting that, “as the supervisor of the lab, certainly
he’s in a position to testify 11
about the procedures that were employed and
give an opinion, based on his expertise, what conclusions should flow from that
testing.” The trial court also denied a motion for a judgment of acquittal on
counts one and three on the ground that there was insufficient proof of
Vecchiarelli’s cause of death.
The
jury found defendant guilty on all counts. The court denied defendant’s motion
for a new trial, which raised, among other arguments, a Sixth Amendment
Confrontation Clause objection to the testimony by Dr. Barbieri. The court
sentenced defendant to an aggregate extended term of eighteen years’
imprisonment with twelve years and two months of parole ineligibility, and
life-time suspension of driving privileges.
Defendant
appealed on the grounds that the trial court should have excluded testimony by
Dr. Barbieri and by Vecchiarelli’s physician, as well as certain inculpatory
statements by defendant. She also argued that her sentence was excessive. The
Appellate Division affirmed the conviction and sentence in an unpublished
opinion.
Addressing
the argument that Dr. Barbieri’s testimony violated defendant’s confrontation
rights, the Appellate Division reviewed recent Confrontation Clause cases from
the United States Supreme Court, as well as its own published opinion in State
v. Rehmann, 419 N.J. Super. 451 (App. Div. 2011). The panel held that Dr.
Barbieri’s testimony did not 12
violate defendant’s confrontation rights
because Dr. Barbieri, who was trained to perform the tests, made an independent
assessment of data collected by the analysts he supervised, testified about the
process by which samples are tested and the tests performed on defendant’s
blood, and explained the test results. The panel noted that no questions about
testing procedures or results were asked on cross-examination that Dr. Barbieri
was not able to answer fully, and concluded that defendant was not denied a
meaningful opportunity for cross-examination merely because Dr. Barbieri
personally had not performed the tests. In addition, the panel noted that,
under N.J.R.E. 703, Dr. Barbieri, who was properly qualified as an expert,
could rely on inadmissible hearsay evidence in forming his independent opinion.
The panel concluded that the trial court’s other rulings were correct and that
defendant’s sentence was not excessive.
We
granted defendant’s petition for certification, “limited to the issue of
whether defendant’s right of confrontation was violated by the admission of the
expert testimony and report regarding the results of the laboratory analysis of
defendant’s blood samples.” State v. Michaels, 214 N.J. 114, 114 (2013).
II.
A.
Defendant
argues that the admission of Dr. Barbieri’s 13
report and testimony violated the
Confrontation Clause because Dr. Barbieri was not the person who performed the
tests conducted on her blood sample. She asserts that the test results, data,
and charts contained in the report are testimonial because the testing was done
to produce evidence for trial, as shown by the fact that the report was sent to
the Sussex County Prosecutor’s Office and references “State v. Julie Michaels”
as its subject matter. Based on the United States Supreme Court’s decision in Bullcoming,
defendant argues that the analysts who performed the tests should have been
subject to cross-examination because there was a possibility of human error in
the testing and their duties involved more than simply transcribing
machine-produced data. In particular, defendant notes that, although Dr.
Barbieri certified in his report that the samples and seals had maintained
their integrity, only the analysts who worked with the samples could have
ensured that that was the case.
Defendant
emphasizes that, unlike the supervisor in Rehmann, supra, 419 N.J. Super. at
457-59, whose testimony about test results the Appellate Division held was
permissible, Dr. Barbieri was not closely and directly involved with the
testing on which he based his report. Defendant also asserts that the State
improperly failed to notify her before trial that Dr. Barbieri was not the
person who performed the tests, thus 14
depriving her of her right to depose the
person who performed the tests used against her if that person was not going to
be available to testify at trial.
In
response to the State’s argument that defendant waived her Confrontation Clause
argument by failing to raise the issue before or during trial, defendant
asserts that she preserved her confrontation claim by objecting to the
testimony and report at trial as unreliable hearsay evidence. Defendant also
argues that the “notice and demand” procedure of N.J.S.A. 2C:35-19 does not
justify introduction of Dr. Barbieri’s report because that statute only applies
to State Forensic Laboratories, not to private laboratories like NMS.
B.
The
State first argues that defendant waived her Confrontation Clause argument by
objecting to Dr. Barbieri’s report only on hearsay grounds at trial. The State
asserts that the raw data provided to defendant during discovery put defendant
on notice that the tests were not conducted by Dr. Barbieri himself. The State
frames defendant’s decision not to challenge Dr. Barbieri’s testimony on
Confrontation Clause grounds as a strategic decision with which she must live.
The State also asserts that, under N.J.R.E. 703, Dr. Barbieri was allowed to
rely on otherwise inadmissible hearsay statements, like the raw data in this
case, to form the independent opinion 15
expressed in his report and testimony.
Therefore, the underlying data was admissible to establish the basis for his
opinion.
Turning
to the merits of defendant’s Confrontation Clause argument, the State argues
that Dr. Barbieri’s testimony did not violate defendant’s confrontation rights
because Dr. Barbieri was the one who reviewed the raw data, produced the report
based on his professional evaluation of the data, and formally certified the
accuracy of the results. He thus was the author of the testimonial statements
against defendant, and defendant was given an opportunity to cross-examine him
at trial in respect of those statements. The State also contends that denying
defendant an opportunity to confront the analysts who conducted the tests did
not violate her Confrontation Clause rights because the data produced by those
analysts was not testimonial. The State argues that the test results were not
testimonial because they were machine generated and were not formalized, sworn,
or certified documents. Further, the State asserts that the results were not
testimonial because the analysts performing the tests conducted them according
to standard procedures and without any knowledge of the origin of the samples
or the purpose for which the results were being obtained. The State points out
that, although NMS conducts testing for law enforcement clients, it also
conducts testing 16
for clients such as coroners, physicians,
and drug treatment facilities operating outside of the realm of law
enforcement.
Finally,
the State urges this Court to adopt a “workable rule,” given the nature of
modern laboratory work, where a number of different individuals may be involved
in the procedures necessary to produce a test result and who may recall little
about any particular test. In arguing for practicality, the State argues that
this Court should examine the evidence closely and avoid rigidly requiring the
testimony of every laboratory analyst and assistant in any way connected with
whatever testing is involved in a particular forensic laboratory report.
III.
The
Sixth Amendment to the United States Constitution provides in part that, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.”5 The Clause is applicable to the
States by virtue of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S.
400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926 (1965).
5 The New
Jersey Constitution provides for like protection to an accused. See N.J. Const.
art. I, ¶ 10 (guaranteeing right of accused “to be confronted with the
witnesses against him”).
This
appeal requires that we address whether admission of a particular forensic
report violates defendant’s confrontation 17
rights where the fourteen analysts who were
involved in the testing utilized in the certified report were not individually
called to testify at trial. The question is made difficult by the differing
analyses used by United States Supreme Court justices in contemporary
Confrontation Clause jurisprudence. We therefore begin with the Supreme Court’s
decisions on the subject.
A.
Prior
to the current turmoil over confrontation rights, the Supreme Court had held
that the Confrontation Clause allowed admission of an out-of-court statement if
the statement fit “within a firmly rooted hearsay exception” or bore
“particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56,
66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597, 608 (1980) (explaining that if
statement “bears adequate indicia of reliability,” Confrontation Clause does
not bar admission of unavailable witness’s statement against criminal
defendant). That understanding was upended twenty-four years later when the
Supreme Court rejected the Roberts reliability analysis and held that an
accused’s right to confront witnesses applies to all out-of-court statements
that are “testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.
1354, 1374, 158 L. Ed. 2d 177, 203 (2004).
In
Crawford, Justice Scalia, writing for the Court, 18
examined the confrontation right’s English
common law and statutory roots, and its development in the American colonies
leading to its inclusion in the Federal Constitution, and concluded that the
Confrontation Clause was directed at “the civil-law mode of criminal procedure,
and particularly its use of ex parte examinations as evidence against the
accused.” Id. at 50, 124 S. Ct. at 1363, 158 L. Ed. 2d at 192. Based on its
historical analysis, the Crawford Court concluded “that the Framers would not
have allowed admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Id. at 53-54, 124 S. Ct. at 1365,
158 L. Ed. 2d at 194. In other words, “[w]here testimonial evidence is at issue
. . . the Sixth Amendment demands what the common law required: unavailability
and a prior opportunity for cross-examination.” Id. at 68, 124 S. Ct. at 1374,
158 L. Ed. 2d at 203.
Although
Crawford’s analysis hinged on whether the out-of-court statement was
testimonial, the Court did not define “testimonial statements.” Ibid. However,
the Crawford decision identified certain “formulations of [the] core class of
‘testimonial’ statements,” such as
ex
parte in-court testimony or its functional equivalent -- that is, material such
as affidavits, custodial examinations, 19
prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially; extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions; [and] statements that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.
[Id.
at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193 (first alteration in
original) (citations and internal quotation marks omitted).]
Importantly,
whether a statement is “testimonial” was not pinned to whether the statement
was taken under oath. Id. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193
(noting that unsworn “[s]tatements taken by police officers in the course of
interrogations are also testimonial [because those] interrogations bear a
striking resemblance to examinations by justices of the peace in England”).
A
three-part test -- whether the statement was testimonial, whether the witness
was unavailable to testify, and whether there was a prior opportunity for
cross-examination -- thus became Crawford’s new standard for assessing
violations of the Confrontation Clause. Id. at 68, 124 S. Ct. at 1374, 158 L.
Ed. 2d at 203. Justices Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer
joined Justice Scalia’s exposition of the new 20
standard, and the earlier Roberts decision
was overruled.6 Id. at 63-69, 124 S. Ct. at 1371-74, 158 L. Ed. 2d 200-03; see
also Davis v. Washington, 547 U.S. 813, 825 n.4, 126 S. Ct. 2266, 2275 n.4, 165
L. Ed. 224, 239 n.4 (2006) (“We overruled Roberts in Crawford by restoring the
unavailability and cross-examination requirements.”). Applying the standard to
the facts in Crawford, supra, the Court held that a tape-recorded statement
made by the defendant’s wife during police interrogation was testimonial, and
its admission, without providing the defendant the right to cross-examine her,
violated the Confrontation Clause. 541 U.S. at 38, 69, 124 S. Ct. at 1356-57,
1374, 158 L. Ed. 2d at 184, 203.
6 Chief Justice Rehnquist and Justice O’Connor concurred in
the judgment but dissented from the majority’s decision to overrule Roberts.
Crawford, supra, 541 U.S. at 69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203-04
(Rehnquist, C.J., dissenting). The Chief Justice claimed that the “distinction
between testimonial and nontestimonial statements . . . is no better rooted in
history than [the Roberts] doctrine.” Ibid.
B.
Since
2004, the Court has considered Crawford’s application in three cases involving
forensic reports. Those cases are Melendez-Diaz v. Massachusetts, 557 U.S. 305,
129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009); Bullcoming, supra, 564 U.S. __, 131
S. Ct. 2705, 180 L. Ed. 2d 610; and Williams v. Illinois, 567 U.S. __, 132 S.
Ct. 2221, 183 L. Ed. 2d 89 (2011). 21
1.
In
Melendez-Diaz, supra, a cocaine distribution and trafficking case, a
Massachusetts trial court admitted into evidence three “certificates of
analysis” setting forth the results of forensic analysis performed by the state
laboratory. 557 U.S. at 308, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. Under
state law, the notarized certificates were admissible without live testimony as
“prima facie evidence of the composition, quality, and the net weight of the
narcotic.” Id. at 309, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. Thus, the
analysts were not produced as witnesses at defendant’s trial; therefore, the
defendant was not afforded the opportunity to cross-examine the individuals who
performed the tests and certified the results. Ibid. A Massachusetts appellate
court affirmed the conviction, and the Supreme Judicial Court of Massachusetts
denied review. Ibid.
The
United States Supreme Court reversed the conviction, in a five-to-four
decision, holding that the laboratory certificates fell “within the ‘core class
of testimonial statements’” and therefore were inadmissible. Id. at 310, 129 S.
Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford, supra, 541 U.S. at 51-52,
124 S. Ct. at 1364, 158 L. Ed. 2d at 193). The majority opinion, authored by
Justice Scalia and joined by Justices Stevens, Souter, and Ginsburg, reaffirmed
the Crawford 22
test for testimonial statements and
employed that test. Id. at 310-11, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321.
The Court determined that the lab reports were “plainly affidavits” that
constituted testimonial statements because they were “declaration[s] of facts
written down and sworn to by the declarant before an officer authorized to
administer oaths”; “solemn declaration[s] or affirmation[s] made for the
purpose of establishing or proving some fact”; “made under circumstances which
would lead an objective witness reasonably to believe that the statement would
be available for use at a later trial”; and “functionally identical to live,
in-court testimony, doing precisely what a witness does on direct examination.”
Ibid. (first alteration in original) (internal quotation marks omitted). The
Court determined that the analysts constituted witnesses against the defendant,
and held that, absent the state’s showing that they were unavailable to testify
at trial and that the defendant had prior opportunity to cross-examine them,
the defendant was entitled to “be confronted with the analysts at trial.” Id.
at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322 (internal quotation marks
omitted).
Justice
Thomas signed on to the majority opinion, but wrote separately to express his
position that “the Confrontation Clause is implicated by extrajudicial
statements only insofar as they are contained in formalized testimonial
materials, such as 23
affidavits, depositions, prior testimony, or
confessions.” Id. at 329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas, J.,
concurring) (internal quotation marks omitted). He thus continued to adhere to
the narrow view of testimonial documents that he first expressed in his
concurrence in White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 747, 116
L. Ed. 2d 848, 865 (1992) (Thomas, J., concurring).
In
a dissent by Justice Kennedy, in which Chief Justice Roberts and Justices
Breyer and Alito joined, those four members declined to follow the analytic
path that the majority opinion was cutting for confrontation jurisprudence as
applied to forensic documents. Id. at 330, 129 S. Ct. at 2543, 174 L. Ed. 2d at
333 (Kennedy, J., dissenting). The dissent asserted that the Confrontation
Clause was not implicated because laboratory analysts are not “conventional”
witnesses against a defendant, positing that the majority “swe[pt] away an
accepted rule governing the admission of scientific evidence.” Ibid. Justice
Kennedy wrote, “The immediate systemic concern is that the Court makes no
attempt to acknowledge the real differences between laboratory analysts who
perform scientific tests and other, more conventional witnesses -- ‘witnesses’
being the word the Framers used in the Confrontation Clause.” Ibid. In his
view, “[l]aboratory analysts who conduct routine scientific tests are not the
kind of conventional witnesses to whom the Confrontation 24
Clause refers.” Id. at 357, 129 S. Ct. at
2558, 174 L. Ed. 2d at 350. The dissent characterized the laboratory analysts
as impartial, technical witnesses, not persons adversarial to the defendant,
and concluded that no confrontation violation arose from admission of the
laboratory certificates. Id. at 345-46, 129 S. Ct. at 2251-52, 174 L. Ed. 2d at
342-43.
2.
In
2011, in Bullcoming, supra, another five-to-four decision, the Supreme Court
considered “whether the Confrontation Clause permits the prosecution to
introduce a 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.” 564 U.S. at __, 131 S. Ct. at
2710, 180 L. Ed. 2d at 615-16. The defendant was arrested and charged with
driving while intoxicated in New Mexico; after obtaining a sample of the
defendant’s blood, police investigators forwarded the sample to the New Mexico
Department of Health, Scientific Laboratory Division (SLD). Id. at __, 131 S.
Ct. at 2709-10, 180 L. Ed. 2d at 616. Analysts at SLD used gas chromatography
machines to identify and quantify blood alcohol concentration levels. Id. at
__, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617. The results of the defendant’s
blood 25
alcohol analysis were recorded onto “a
standard SLD form titled ‘Report of Blood Alcohol Analysis.’” Id. at __, 131 S.
Ct. at 2710, 180 L. Ed. 2d at 616. The form included a section for
identification of the “participants in the testing,” and a section where “the
forensic analyst certified his finding.” Ibid. In particular, the SLD report
contained the following: information from the police officer (reason for the
arrest, and date/time blood was drawn); the “‘certificate of analyst,’
completed and signed by Curtis Caylor, the SLD forensic analyst assigned to
test [the defendant’s] blood sample,” which included an affirmation that the
“sample was received intact” and proper procedures were followed; the blood
alcohol concentration; and a certification that the forensic analyst was
qualified to conduct the test. Id. at __, 131 S. Ct. at 2710-11, 180 L. Ed. 2d
at 616-17. There also was a section where “the SLD examiner who reviewed
Caylor’s analysis certified that Caylor was qualified to conduct the BAC test,
and that the ‘established procedure’ for handling and analyzing [the] sample
‘ha[d] been followed.’” Id. at __, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617
(final alteration in original).
At
trial, “the State announced that it would not be calling SLD analyst Curtis
Caylor as a witness.” Id. at __, 131 S. Ct. at 2711, 180 L. Ed. 2d at 618. The
trial court admitted the blood report as a business record, over defense
counsel’s 26
objection, during the testimony of “an SLD
scientist who had neither observed nor reviewed Caylor’s analysis.” Id. at __,
131 S. Ct. at 2712, 180 L. Ed. 2d at 618. The defendant was convicted, and the
state appellate court and state supreme court each affirmed the conviction. Id.
at __, 131 S. Ct. at 2712-13, 180 L. Ed. 2d at 618-19. Specifically, the state
supreme court, while acknowledging that the report was testimonial, concluded
that the substitute analyst served as a surrogate witness, such that there was
no violation of the defendant’s right of confrontation. Id. at __, 131 S. Ct.
at 2713, 180 L. Ed. 2d at 619.
The
Supreme Court reversed and held, in an opinion by Justice Ginsberg, that
“surrogate testimony of that order does not meet the constitutional
requirement” of confrontation. Id. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at
616. The Court’s holding was joined by Justices Scalia, Thomas, Sotomayor, and
Kagan.
Justice
Ginsburg first found that the forensic report in issue was testimonial by
analogizing the report to the certifications in Melendez-Diaz and underscoring
the similarities: “[l]ike the analysts in Melendez-Diaz, analyst Caylor tested
the evidence and prepared a certificate concerning the result of his analysis”;
and “[l]ike the Melendez-Diaz certificates, Caylor’s certificate is
‘formalized’ in a signed 27
document, headed a ‘report.’” Id. at __,
131 S. Ct. at 2717, 180 L. Ed. 2d at 624 (citations omitted). Notwithstanding
that Caylor’s SLD report was not notarized, it was determined that the
formalities of the report sufficed to render its contents testimonial. Ibid.
The
opinion then addressed whether the surrogate witness satisfied the
Confrontation Clause requirements. Id. at __, 131 S. Ct. at 2714-16, 180 L. Ed.
2d at 620-23. Justice Ginsberg noted that Caylor’s representations in the SLD
report (that the blood sample was intact, that proper procedures were followed,
and that the analysis was valid) were proper subjects for cross-examination.
Id. at __, 131 S. Ct. at 2714, 180 L. Ed. 2d at 620-21. With cross-examination
concerns in mind, the Court concluded that the surrogate witness did not
satisfy the defendant’s confrontation rights because the surrogate’s testimony
“could not convey what Caylor knew or observed about the events his
certification concerned, i.e., the particular test and testing process he
employed.” Id. at __, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622 (footnote
omitted). Simply put, the surrogate did not certify the report or perform or
observe the tests and, therefore, cross-examination of the surrogate would not
satisfy the defendant’s confrontation rights.
Justice
Scalia joined the majority opinion in full, including Part IV, which addressed
and dismissed concerns that 28
were voiced by parties and the dissent
about the undue testimonial burdens that would be placed on forensic analysts
when the Court’s holding was applied to the many situations where multiple
participants are involved in forensic testing, and the retesting of laboratory
samples that seemingly would be necessitated in the holding’s wake. Id. at __,
131 S. Ct. at 2717-19, 180 L. Ed. 2d at 624-26.
Part
IV is unusual in that only Justice Scalia joined in that part of the opinion.
Neither Justice Ginsberg nor any of the other justices who joined her opinion
adopted that section’s dismissal of the practical concerns implicated by the holding’s
direction for forensic reports. In addition, Justices Thomas and Ginsberg did
not join in footnote six of the opinion, which reviewed the “primary purpose”
analysis used in the appeal to determine whether the SLD document involved
testimonial statements. Id. at __ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d at
620 n.6.7
7 As Justice
Thomas previously had emphasized in his separate opinion in Melendez-Diaz,
supra, his view was that the testimonial nature of statements depended on their
formality. 557 U.S. at 329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas,
J., concurring). His rejection of the articulation of the primary purpose test
in Bullcoming is consistent with that view.
Justice
Sotomayor also wrote a separate concurring opinion that emphasized the limited
nature of the Court’s holding. Id. at __, 131 S. Ct. at 2719, 180 L. Ed. 2d at
626 (Sotomayor, J., 29
concurring). Her concurrence highlighted
factual circumstances that were not presented in Bullcoming:
First,
this is not a case in which the State suggested an alternate purpose, much less
an alternate primary purpose, for the [SLD] report. . . .
Second,
this is not a case in which the person testifying is a supervisor, reviewer, or
someone else with a personal, albeit limited, connection to the scientific test
at issue. . . . It would be a different case if, for example, a supervisor who
observed an analyst conducting a test testified about the results or a report
about such results. We need not address what degree of involvement is
sufficient because here [the surrogate who testified] had no involvement
whatsoever in the relevant test and report.
Third,
this is not a case in which an expert witness was asked for his independent
opinion about underlying testimonial reports that were not themselves admitted
into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type
upon which experts in the field would reasonably rely in forming an opinion
need not be admissible in order for the expert’s opinion based on the facts and
data to be admitted). As the Court notes, ante, at ___, 180 L. Ed. 2d at 622,
the State does not assert that [the surrogate] offered an independent, expert
opinion about Bullcoming’s blood alcohol concentration. Rather, the State
explains, “[a]side from reading a report that was introduced as an exhibit,
[the surrogate] offered no opinion about [Bullcoming’s] blood alcohol content .
. . .” . . . We would face a different question if asked to determine the
constitutionality of allowing an expert witness to discuss others’ testimonial
statements if the testimonial statements 30
were not themselves admitted as evidence.
Finally,
this is not a case in which the State introduced only machine-generated
results, such as a printout from a gas chromatograph. . . . [W]e do not decide
whether . . . a State could introduce (assuming an adequate chain of custody
foundation) raw data generated by a machine in conjunction with the testimony
of an expert witness.
[Id.
at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 628-30 (Sotomayor, J.,
concurring).]
In
making those important points, Justice Sotomayor’s opinion foreshadowed many of
the questions that courts such as ours have had to wrestle with in the wake of
the Supreme Court’s contemporary Confrontation Clause cases. See, e.g.,
Marshall v. People, 309 P.3d 943, 947-48 (Colo. 2013) (listing cases that have
addressed just “[the] question of whether supervisor testimony satisfies the
Confrontation Clause when the supervisor prepares or signs the report”), cert.
denied, 82 U.S.L.W. 3685 (U.S. May 27, 2014). Importantly, she returned the
discussion in Bullcoming to the notable point that Melendez-Diaz, in addressing
a circumstance in which there was a failure to call any witnesses at all in
connection with the forensic report in issue, did not stand for the proposition
that every person identified as performing some task in connection with a
forensic report must be called as a witness.
[N]ot
. . . every person noted on the [SLD] report must testify. As . . . explained
in 31
Melendez-Diaz, it 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.
at __ n.2, 131 S. Ct. at 2721 n.2, 180 L. Ed. 2d at 627 n.2 (internal quotation
marks omitted).]
Justice
Sotomayor’s separate opinion has helped curb the belief that Bullcoming stands
for the proposition that forensic reports require, for their admission, the
testimony of all analysts involved in the handling and testing of a sample used
in any forensic analysis. See, e.g., Ware v. State, __ So. 3d __, __ (Ala.
2014) (slip op. at 16); Jenkins v. State, 102 So. 3d 1063, 1066 (Miss. 2012),
cert. denied, __ U.S. __, 133 S. Ct. 2856, 186 L. Ed. 2d 914 (2013); State v.
Eagle, 835 N.W.2d 886, 898 (S.D. 2013).
Notably,
there also was a dissent in Bullcoming, supra, authored by Justice Kennedy and
joined by Chief Justice Roberts, Justice Breyer and Justice Alito, that
expressed disagreement with “the new and serious misstep of extending
[Melendez-Diaz’s] holding to instances like this one.” 564 U.S. at __, 131 S.
Ct. at 2723, 180 L. Ed. 2d at 630 (Kennedy, J., dissenting). Building on his
dissent in Melendez-Diaz, Justice Kennedy focused on “[a]dditional reasons,
applicable to the extension of that doctrine and to the new ruling in this
case,” for his 32
objection to the majority’s confrontation
theory. Ibid. He termed “requiring the State to call the technician who filled
out a form and recorded the results of a test . . . a hollow formality.” Id. at
__, 131 S. Ct. at 2724, 180 L. Ed. 2d at 632. He pointed to the varying
principles that “have weaved in and out of the Crawford jurisprudence,” and
expressed serious reservations about the rationale employed by the majority:
“That the Court in the wake of Crawford has had such trouble fashioning a clear
vision of that case’s meaning is unsettling . . . .” Id. at __, 131 S. Ct. at
2725-26, 180 L. Ed. 2d at 632-33. The dissent concluded with a strong call to
reexamine the Court’s Confrontation Clause jurisprudence:
Seven
years after its initiation, it bears remembering that the Crawford approach was
not preordained. This Court’s missteps have produced an interpretation of the
word “witness” at odds with its meaning elsewhere in the Constitution . . . and
at odds with the sound administration of justice. It is time to return to solid
ground.
[Id.
at __, 131 S. Ct. at 2728, 180 L. Ed. 2d at 636 (citation omitted).]
3.
Most
recently, the Supreme Court issued Williams, supra, a case involving a DNA
profile produced by a private laboratory, Cellmark. The profile was discussed
in testimony by a police analyst who matched it to the defendant’s DNA. 567
U.S. at __, 132 S. Ct. at 2227, 183 L. Ed. 2d at 98. The analyst used 33
information from a DNA profile created from
crime scene samples by another analyst in rendering her opinion that that
profile matched the DNA profile that she herself had created from the
defendant’s buccal swab. Id. at __, 132 S. Ct. at 2240, 2243-44, 183 L. Ed. 2d
at 112, 115-16. A plurality opinion by Justice Alito, joined by Chief Justice
Roberts and Justices Kennedy and Breyer, set forth several rationales for
concluding that the defendant’s right of confrontation was not violated by the
testimony. We refer to this as the plurality opinion, although the analysis is
criticized by a majority of the Court, see id. at __, 132 S. Ct. at 2265, 183
L. Ed. 2d at 139 (Kagan, J., dissenting), including Justice Thomas, who joined
in the judgment but disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183
L. Ed. 2d at 129 (Thomas, J., concurring).
Two
key analyses are set forth in Justice Alito’s opinion. Justice Alito first
reasoned that “[o]ut-of-court statements that are related by the expert solely
for the purpose of explaining the assumptions on which [her] opinion rests are
not offered for their truth and thus fall outside the scope of the
Confrontation Clause.” Id. at __, 132 S. Ct. at 2228, 183 L. Ed. 2d at 99
(plurality opinion). In opining that the Cellmark DNA profile was never
admitted for its truth, Justice Alito reasoned,
[t]his
conclusion is entirely consistent 34
with Bullcoming and Melendez-Diaz. In those
cases, the forensic reports were introduced into evidence, and there is no
question that this was done for the purpose of proving the truth of what they
asserted: in Bullcoming that the defendant’s blood alcohol level exceeded the
legal limit and in Melendez-Diaz that the substance in question contained
cocaine. Nothing comparable happened here. In this case, the Cellmark report
was not introduced into evidence. An expert witness referred to the report not
to prove the truth of the matter asserted in the report, i.e., that the report
contained an accurate profile of the perpetrator’s DNA, but only to establish
that the report contained a DNA profile that matched the DNA profile deduced
from [Williams’s] blood.
[Id.
at __, 132 S. Ct. at 2240, 183 L. Ed. 2d at 112.]
Alternatively,
Justice Alito’s opinion states that “even if the report produced by Cellmark
had been admitted into evidence, there would have been no Confrontation Clause
violation” because the report was not produced for the primary purpose of
accusing a targeted individual. Id. at __, 132 S. Ct. at 2228, 183 L. Ed. 2d at
99. “The report was sought not for the purpose of obtaining evidence to be used
against [Williams], who was not even under suspicion at the time, but for the
purpose of finding a rapist who was on the loose.” Ibid. This alternative
analysis -- promoting a targeted-accusation test -- provoked criticism from
other Court members, who asserted that the opinion threw into disorder the
Court’s previously settled test for assessing whether evidence is testimonial
for confrontation 35
purposes. Id. at __, 132 S. Ct. at 2274,
183 L. Ed. 2d at 149 (Kagan, J., dissenting). However, before turning to the
dissent’s disagreement with Justice Alito’s plurality opinion, it is noteworthy
that even within the plurality there were concurring opinions.
Justice
Breyer, who also joined Justice Alito’s opinion, issued a concurring opinion in
which he largely agreed with the plurality, but expressed his view that
“neither the plurality nor the dissent answers adequately: How does the Confrontation
Clause apply to the panoply of crime laboratory reports and underlying
technical statements written by (or otherwise made by) laboratory technicians?”
Id. at __, 132 S. Ct. at 2245, 183 L. Ed. 2d at 117 (Breyer, J., concurring).
Addressing the dissent specifically, Justice Breyer critically noted that its
reasoning would “require[e] the prosecution to call all of the laboratory
experts” who worked on a matter. Id. at __, 132 S. Ct. at 2246, 183 L. Ed. 2d
at 118. Ultimately, Justice Breyer stated, “I adhere to the dissenting view set
forth in Melendez-Diaz and Bullcoming, under which the Cellmark report would
not be considered ‘testimonial’ and barred by the Confrontation Clause.” Id. at
__, 132 S. Ct. at 2248, 183 L. Ed. 2d at 121.
Justice
Thomas concurred only in the judgment of the Alito plurality opinion. Id. at
__, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring in the
judgment). In his view, 36
“the disclosure of Cellmark’s out-of-court
statements through the expert testimony of [the analyst who performed the DNA
match] did not violate the Confrontation Clause.” Ibid. However, he “share[d]
the dissent’s view of the plurality’s flawed analysis,” and only reached his
conclusion “because Cellmark’s statements lacked the requisite ‘formality and
solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation
Clause.” Ibid. (quoting Michigan v. Bryant, 562 U.S. __, __, 131 S. Ct. 1143,
1168, 179 L. Ed. 2d 93, 120 (2011) (Thomas, J., concurring in judgment)).
Justice
Kagan authored a dissent, which was joined by Justices Scalia, Ginsburg, and
Sotomayor. Id. at __, 132 S. Ct. at 2264, 183 L. Ed. 2d at 138 (Kagan, J.,
dissenting). In a single paragraph, Justice Kagan captured the splintered
viewpoints existing among the Court’s members:
The
Court today disagrees [that Williams’s confrontation rights were violated],
though it cannot settle on a reason why. Justice Alito, joined by three other
Justices, advances two theories -- that the expert’s summary of the Cellmark
report was not offered for its truth, and that the report is not the kind of
statement triggering the Confrontation Clause’s protection. . . . [I]n all
except its disposition, his opinion is a dissent: Five Justices specifically
reject every aspect of its reasoning and every paragraph of its explication.
Justice Thomas, for his part, contends that the Cellmark report is
nontestimonial on a different rationale. But no other Justice joins his opinion
or subscribes to the test 37
he offers.
[Id.
at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (citations omitted).]
On
the merits of the case, Justice Kagan found that “the [Cellmark] report is, in
every conceivable respect, a statement meant to serve as evidence in a
potential criminal trial,” putting the report squarely within the realm of
testimonial statements. Id. at __, 132 S. Ct. at 2275, 183 L. Ed. 2d at 151. In
concluding, Justice Kagan expressed her frustration with the results flowing
from the Court’s divergent opinions:
The
five Justices who control the outcome of today’s case agree on very little.
Among them, though, they can boast of two accomplishments. First, they have
approved the introduction of testimony at Williams’s trial that the
Confrontation Clause, rightly understood, clearly prohibits. Second, they have
left significant confusion in their wake. What comes out of four Justices’
desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined
with one Justice’s one-justice view of those holdings, is -- to be frank -- who
knows what. Those decisions apparently no longer mean all that they say. Yet no
one can tell in what way or to what extent they are altered because no proposed
limitation commands the support of a majority.
[Id.
at __, 132 S. Ct. at 2277, 183 L. Ed. 2d at 152.]
IV.
A.
Normally
we would turn to the Supreme Court’s most recent 38
decision in an area of law to guide us in
our interpretation and application of the Court’s case law. However, like a
number of state high courts and federal courts of appeal, we find that the
fractured holdings of Williams provide little guidance in understanding when
testimony by a laboratory supervisor or co-analyst about a forensic report
violates the Confrontation Clause. See Jenkins v. United States, 75 A.3d 174,
184 (D.C. 2013) (noting that Williams “has not provided any clarity” to
Confrontation Clause jurisprudence); State v. Ortiz-Zape, 743 S.E.2d 156, 161
(N.C. 2013) (noting “lack of definitive guidance” provided by Williams), cert.
denied, 82 U.S.L.W. 3685 (U.S. May 27, 2014).
A
case may be “of questionable precedential value” where “a majority of the Court
expressly disagree[s] with the rationale of the plurality.” Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 66, 116 S. Ct. 1114, 1128, 134 L. Ed. 2d 252, 273
(1996). The general rule for interpreting opinions where no single rationale is
espoused by a majority of the Court is that “the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S. Ct.
990, 993, 51 L. Ed. 2d 260, 266 (1977) (internal quotation marks omitted).
However,
as recognized by the Court of Appeals for the 39
District of Columbia in attempting to
interpret Williams, the Marks approach “works only when the narrowest opinion
actually does represent ‘a common denominator.’ If one opinion ‘does not fit
entirely within a broader circle drawn by the others,’ the Marks approach . . .
would ‘turn a single opinion’ to which ‘eight of nine justices do not
subscribe’ into law.’” Young v. United States, 63 A.3d 1033, 1043 (D.C. 2013)
(quoting King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991), cert. denied,
503 U.S. 918, 112 S. Ct. 1290, 117 L. Ed. 2d 514 (1992)). Rather, as the Court
of Appeals for the Third Circuit has noted, in cases where the rationales given
in the multiple opinions are not subsets of each other, “no particular standard
constitutes the law of the land, because no single approach can be said to have
the support of a majority of the Court.” Rappa v. New Castle Cnty., 18 F.3d
1043, 1058 (3d Cir. 1994); see also State v. Deadwiller, 834 N.W.2d 362, 373
(Wis. 2013) (“If no theoretical overlap exists between the rationales employed
by the plurality and the concurrence, ‘the only binding aspect of the
fragmented decision . . . is its specific result.’” (alteration in original)
(quoting Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222, 234 (3d Cir.
2002), cert. denied, 538 U.S. 1012, 123 S. Ct. 1927, 155 L. Ed. 848 (2003))
(internal quotation marks omitted)).
We
find that Williams is such a case for the following 40
reasons.
Justice
Alito, in his four-justice plurality opinion, found no Confrontation Clause
violation because (1) the expert witness’s reference to the laboratory report
in question was not an assertion that the information in the report was true,
Williams, supra, 567 U.S. at __, 132 S. Ct. at 2240, 183 L. Ed. 2d at 111-12;
and (2) the report was not testimonial because it was not produced for the
primary purpose of accusing a specific, known defendant, id. at __, 132 S. Ct.
at 2243-44, 183 L. Ed. 2d at 115-16. Justice Thomas, writing only for himself,
concurred in the result because he also concluded that the report was not
testimonial. Id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J.,
concurring in the judgment). However, he applied an entirely different test,
focusing on the formality and solemnity of the statement rather than whether
its primary purpose was accusatory. Id. at __, 132 S. Ct. at 2259-60, 183 L.
Ed. 2d at 133-34. He also disagreed that the report had not been introduced for
its truth. Id. at __, 132 S. Ct. at 2257, 183 L. Ed. 2d at 130. Justice Kagan,
in a four-justice dissent, disagreed with both the rationales articulated by
the plurality and with the rationale articulated by Justice Thomas. Id. at __, 132
S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J., dissenting). Rather, the
dissent found that the report was testimonial because it was intended to serve
as evidence in a 41
criminal trial and that the manner of its
introduction failed to satisfy the defendant’s confrontation rights. Id. at __,
132 S. Ct. at 2267-68, 183 L. Ed. 2d at 142.
In
short, each of those three opinions in Williams embraces a different approach
to determining whether the use of forensic evidence violates the Confrontation
Clause, and there is no narrow rule that would have the support of a majority
of the Supreme Court that we can discern from the opinions in Williams.
Further, Williams advances a wholly new approach to when a forensic document
will be deemed testimonial, and that approach diverges from the primary purpose
test that had been applied previously.
We
find Williams’s force, as precedent, at best unclear. Without more definitive
evidence that the Court is adopting an approach other than the primary purpose
test for use in determining when a forensic document is testimonial, we are
reluctant to conclude that the primary purpose test has been abandoned.
Moreover,
since the Supreme Court’s Crawford decision and its subsequent cases applying
the “primary purpose” test to various hearsay statements made to police,8 our
Court has
8 See Davis,
supra, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (addressing
consolidated cases Davis v. Washington, where Court found admissible victim’s
911 call in assault case, and Hammon v. Indiana, where Court held inadmissible
affidavit from 42
domestic violence victim interviewed by police at crime
scene); see also Bryant, supra, 562 U.S. at __, 131 S. Ct. at 1150, 179 L. Ed.
2d at 101-02 (holding admissible statement by victim to police about shooter’s
identity because primary purpose was to respond to ongoing emergency).
9 The primary
purpose test also has been used to discern whether statements in forensic
reports were testimonial. In Sweet, supra, 195 N.J. at 373-74, we distinguished
foundational documents from signed and certified State Laboratory certificates
on the basis that the former were not “testimonial.” Sweet involved
Breathalyzer foundational documents, specifically ampoule testing certificates
and breath testing instrument inspection certificates. Id. at 370-71. We noted
that those foundational records constituted hearsay but were admissible as
business records under N.J.R.E. 803(c)(3), and not “testimonial” so as to raise
confrontation concerns. Id. at 372-74. A similar observation was made in State
v. Chun when considering Alcotest blood alcohol test results. 194 N.J. 54, 142,
cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). We noted
that the foundational documents showing that the device was in good working
condition constituted admissible hearsay as business records, without risking
violation of a defendant’s confrontation rights. Ibid.
followed
the “primary purpose” test to distinguish between non-testimonial and
testimonial statements when determining whether a violation of the
Confrontation Clause has occurred. See State ex rel. J.A., 195 N.J. 324, 348-51
(2008) (finding that, because non-appearing eyewitness’s statement to police
about robbery and robbers’ flight was testimonial, statement’s admission
violated defendant’s confrontation rights); State v. Buda, 195 N.J. 278, 304-08
(2008) (holding battered child’s statement to mother and separate statement
during hospital admission to child services worker were not testimonial and
therefore admission of statements did not violate defendant’s confrontation
rights).9 43
Accordingly, we adhere to that approach.
Furthermore,
the divergent analytic approaches taken in Williams with respect to the
testimonial nature of the Cellmark report also undermine the decision’s value
in assessing, in any given circumstance involving forensic evidence, whether a
defendant’s confrontation rights were violated. Accordingly, we turn for more
reliable guidance in that respect to pre-Williams Confrontation Clause law.
B.
In
Melendez-Diaz, supra, no witness was offered to support and be cross-examined
in respect of the statements contained in the forensic document that was
admitted into evidence without live testimony. 557 U.S. at 308-09, 129 S. Ct.
at 2531, 174 L. Ed. 2d at 320. In Bullcoming, supra, a forensic report was
admitted into evidence through the testimony of a co-worker who did not observe
the work of the analyst who performed the testing, serve as the analyst’s
supervisor, or certify the results obtained by the analyst whose work was
contained in the report as a second independent reviewer. 564 U.S. at __, 131
S. Ct. at 2709-10, 180 L. Ed. 2d at 616. The holdings in those two cases can be
understood based on the peculiar and stark facts in each. That said, it is far
from clear that either case compels a broad new obligation requiring testimony
by multiple analysts involved in every kind of forensic testing that produces a
44
report used in a criminal case against a
defendant.
First,
neither Bullcoming’s holding nor Melendez-Diaz’s requires that every analyst
involved in a testing process must testify in order to admit a forensic report
into evidence and satisfy confrontation rights. That conclusion was underscored
in Justice Sotomayor’s observations on Melendez-Diaz in Bullcoming, supra. See
564 U.S. at __ n.2, 131 S. Ct. at 2721 n.2, 180 L. Ed. 2d at 627 n.2
(Sotomayor, J., concurring). Justice Kagan’s dissent in Williams, supra, makes
the same point. See 567 U.S. at __ n.4, 132 S. Ct. at 2273 n.4, 183 L. Ed. 2d
at 148 n.4 (Kagan, J., dissenting). The fact that no member of the Court except
Justice Scalia joined Section IV of Bullcoming further suggests that all of the
other justices harbor some level of disquiet over the necessity and
practicality of rigidly interpreting the Confrontation Clause to compel the
testimony of all persons who handled or were involved in the forensic testing
of a sample.
Second,
neither Melendez-Diaz nor Bullcoming lead to the conclusion that in every case,
no matter the type of testing involved or the type of review conducted by the
person who does testify, the primary analyst involved in the original testing
must testify to avoid a Confrontation Clause violation. In Melendez-Diaz, no
analyst testified. In Bullcoming, the surrogate analyst who testified was found
to lack sufficient 45
direct knowledge about the blood alcohol
testing and the conclusions in the blood alcohol report that the surrogate
neither certified nor separately reviewed. We do not find that either
Melendez-Diaz or Bullcoming stands for the proposition that in all cases the
primary analyst who performed the test must testify when a different,
sufficiently knowledgeable expert is called to testify at trial. That would
take the holdings of those decisions to a new level, which we decline to do
when the Supreme Court has not done so.
Moreover,
it would take confrontation law to a level that is not only impractical, but,
equally importantly, is inconsistent with our prior law addressing the
admissibility of an expert’s testimony in respect of the substance of
underlying information that he or she used in forming his or her opinion.
Even
prior to the Supreme Court’s reexamination of the Confrontation Clause in
Crawford and our subsequent articulation of the primary purpose test in J.A.
and Buda, we had grappled with the admissibility of medical reports and other
forensic evidence under our evidence rules. As noted by the State in this case,
N.J.R.E. 703 allows a testifying expert to rely on inadmissible facts or data
as long as those facts or data are “of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject.”
N.J.R.E. 705 further provides that, although an expert “may 46
testify in terms of opinion or inference
and give reasons therefor without prior disclosure of the underlying facts or
data, . . . [t]he expert may in any event be required to disclose the
underlying facts or data on cross-examination.” While not a substitute for a
confrontation analysis as to when the proponent of the underlying information
must be produced for cross-examination, it provides necessary background to our
analysis of the forensic evidence in issue.
Among
the documents that may properly be relied on by an expert witness under Rule
703 are nontestimonial foundational documents. We have previously held that
documents demonstrating that a machine is in good working condition and is
calibrated correctly are within this class of nontestimonial foundational
documents because they do not report past facts and are not generated in order
to establish a fact that is an element of a criminal offense. See Sweet, supra,
195 N.J. at 372-74 (noting admissibility of ampoule testing certificates and
breath testing instrument inspection certificates because nontestimonial);
State v. Chun, 194 N.J. 54, 142-44 (commenting similarly for Alcotest blood
alcohol test results in respect of foundational documents that show device is
in good working condition), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.
Ed. 2d 41 (2008). A number of other courts similarly have found that the
introduction at trial of calibration records does not violate 47
the Confrontation Clause. See, e.g., People
v. Pealer, 985 N.E.2d 903, 907-08 (N.Y.), cert. denied, __ U.S. __, 134 S. Ct.
105, 187 L. Ed. 2d 77 (2013); Commonwealth v. Dyarman, 73 A.3d 565, 574 (Pa.
2013), cert. denied, __ U.S. __, 134 S. Ct. 948, 187 L. Ed. 2d 785 (2014);
Jones v. State, 982 N.E.2d 417, 428 (Ind. Ct. App.), transfer denied, 987
N.E.2d 70 (Ind. 2013).
Although
a hearsay analysis is not a replacement for a confrontation analysis, we note
further that in the application of N.J.R.E. 808’s business records hearsay
exception to scientific reports and records containing embedded information we
eschew admission of subjective, complex hearsay statements. The admissibility
of such reports depends on factors including “the relative degrees of
objectivity and subjectivity involved in the procedure; the regularity with
which these analyses are done; [and] the routine quality of each analysis.”
State v. Matulewicz, 101 N.J. 27, 30 (1985) (addressing laboratory report
prepared by State Police chemist). Recent cases in this context continue to
connect the degree of complexity of the analysis with the importance of
allowing the other party to cross-examine the expert who conducted that
analysis. See Agha v. Feiner, 198 N.J. 50, 65-67 (2009) (differentiating
between “straightforward observations” contained in expert reports that may be
admitted for their truth without an opportunity for cross-examination of the
declarant, and statements of “diagnosis” “critical to the 48
primary issue in the case” which may not
be); Chun, supra, 194 N.J. at 142 (finding routine Breathalyzer calibration
test reports admissible as business records); Brun v. Cardoso, 390 N.J. Super.
409, 422 (App. Div. 2006) (rejecting medical document as business record based
on complexity of MRI reading and diagnosis).
In
determining when the facts underlying a forensic expert opinion may be
disclosed to the jury, our evidence case law has focused on whether the witness
is knowledgeable about the particular information used in forming the opinion
to which he or she is testifying and has a means to verify the underlying
information even if he or she was not the primary creator of the data. Our
evidence law is thus consistent with the principle that a knowledgeable expert
who is someone other than the primary analyst who conducted a forensic gas
chromatography/mass spectrometry test may testify to an opinion regarding
testing results, when those results have been generated by demonstrably
calibrated instruments. Accord Ortiz-Zape, supra, 743 S.E.2d at 161-62 (holding
that expert’s use of machine-generated raw data, consistent with North
Carolina’s Evidence Rule 703, does not violate Confrontation Clause when
defendant has opportunity to cross-examine expert who rendered opinion based on
that data).
With
that backdrop, we examine the testimony of Dr. Barbieri that was challenged in
this matter. 49
V.
A.
In
this appeal, defendant argues that her confrontation rights were violated by
Dr. Barbieri’s testimony and the admission of his certified report. She focuses
on Dr. Barbieri’s testimony and opinion that, based on the nature and quantity
of drugs found in defendant’s blood sample from testing procedures carried out
by analysts in the laboratory he supervised, defendant was drug impaired at the
time of her motor vehicle accident. The evolution of defendant’s argument deserves
brief mention.
At
trial, defendant objected to the admission of Dr. Barbieri’s three-page report
on the basis that it was inadmissible hearsay because Dr. Barbieri testified to
someone else’s findings rather than his own. The State emphasized that Dr.
Barbieri testified that he personally reviewed the data generated from the gas
chromatography/mass spectrometry tests and that he was the one who drafted and
signed the report setting forth the results and his opinion. There was no
quoting of another person’s findings in Dr. Barbieri’s report; it only
referenced machine-generated data identifying and quantifying the drugs found
in defendant’s blood sample.
The
trial court rejected defendant’s hearsay argument as a basis to exclude the
report, and rightly so. Dr. Barbieri 50
examined and used the raw data generated by
the gas chromatography/mass spectrometry machines in preparing his report and
the conclusions that he reached. This case is unlike Agha, supra, 198 N.J. at
67, where an expert testified based on a hospital report containing another
doctor’s subjective statements and conclusions. Under those circumstances, we
held that the statements contained in the report were hearsay and could not be
admitted for their truth through the expert’s testimony. Ibid.
Later,
at the close of the State’s case, defendant filed a motion to strike Dr.
Barbieri’s testimony, arguing that the State was required to produce the person
who actually performed the testing about which Dr. Barbieri testified.
Defendant did not expressly claim a violation of her rights under the
Confrontation Clause. The trial court denied the motion, explaining that “[a]s
the supervisor of the lab, certainly [Dr. Barbieri is] in a position to testify
about the procedures that were employed and give an opinion, based upon his
expertise, [on] what conclusions should flow from that testing.” The court
indicated that the weight to be given to the testimony would be up to the jury,
but it declined “to exclude [Dr. Barbieri’s] testimony because he did not
personally perform the tests.”
In
a post-trial motion and when the case was appealed to the Appellate Division,
defendant cast her argument about Dr. 51
Barbieri’s testimony as a violation of the
Confrontation Clause. The Appellate Division addressed that Confrontation
Clause argument, and we do as well. However, the State makes a strong argument
that defendant waived her Confrontation Clause argument, or that the issue
should be assessed as a matter of plain error in light of the way it has been
raised. Had a confrontation argument been raised before the State concluded its
case, inquiry could have been made as to which analyst or analysts defendant
wanted produced. Even at this stage in the proceedings, we are uncertain
whether defendant argues that the State must call all fourteen analysts who
played some role, no matter how inconsequential, in the procedures and
protocols at the lab, or one analyst, or some number in between. Defendant has
never been put to the task of making a confrontation demand.10 As such we must
consider defendant’s confrontation argument taken to the extreme: that all
fourteen analysts must be produced in order for the State to introduce Dr.
Barbieri’s testimony and report.
10 Defendant’s argument that, until the trial, she did not
know that Dr. Barbieri did not personally perform the tests rings hollow.
First, she should have known from the documents turned over in discovery. The hundreds
of pages of discovery that constituted the lab documents do not contain Dr.
Barbieri’s name on the pages reporting machine readings. Second, even after
discovering this fact during cross-examination of Dr. Barbieri, defendant still
never made any demand for production of any or all analysts. 52
With that perspective, we turn to Dr.
Barbieri’s testimony, which was offered without any notice that, for
confrontation purposes, he needed to justify in detail the independence of his
review of the testing that was done or the exact manner in which he reached the
conclusions in his report.
B.
Dr.
Barbieri’s testimony explained that the analysts and technicians employed by
NMS perform differing roles in the handling and testing of blood samples.
Indeed, much of modern forensic testing involves multiple analysts, as was the
case in the present matter. He described the process in detail, including how a
specimen is inspected and marked when received, how a work order is assigned
and follows the work through every step in the process, and how chain of
custody is maintained and recorded. His description of the testing process, he
said, applied generally and in defendant’s case.
The
samples are labeled.
The
testing is ordered by a forensic processor.
Aliquots
are drawn.
An
aliquot is a small sample of the original sample for moving back into the
laboratory proper for the various types of testing.
The
original sample never leaves the forensic processing area. 53
After the aliquots are drawn, that original
sample is stored in a secured refrigerator. Labeled as to location and things
like that. So the aliquot goes back to the lab.
All
of this is done, and [a] forensic folder is produced, which is labeled and that
carries through with all the testing; and some of the original data actually
goes into that folder.
When
all the testing is done, the toxicologist is notified. Toxicologists pick up
the folder [and] review all the data. Either the raw data that’s in the file,
or on the computer. Generate a report. And that report is sent to the client.
With all the information that we have received. And positive and negative
findings as well.
Dr.
Barbieri testified that 957 pages of raw data, including chain of custody and
machine-generated documents, were produced from the work that NMS performed on
defendant’s blood sample. That raw data was shared with defendant in discovery
and included, in relevant part, the machine-generated data from the gas
chromatography/mass spectrometry machines on the calibration material, the
quality control material, and the aliquots of defendant’s blood sample. Dr.
Barbieri explained how gas chromatography/mass spectrometry, which he was
trained to perform and was knowledgeable about, was used to confirm the
presence of drugs in defendant’s blood:
[I]t’s
a procedure that’s been around since, 1950’s. So it’s a well established
procedure. 54
There’s two parts to the instrumentation.
The Gas Chromatogram, and then the Mass Spectrometer.
The
GC part of it is basically a large tube. It’s about 100-foot very fine tube in
an oven. And, there’s a gas that flows through: Helium inert gas. And the
sample is injected into one end of the column into the injectory port. And this
oven heats. It heats it up to over 250 degrees centigrade. It’s very hot. And
everything volatilizes into a vapor phase. And as the gas flows through this
column[, t]he column separates different compounds. And when it comes out at
the detector, the time from the time it’s injected, to the time it comes out,
is called the “retention time.” The time it’s retained in the column.
Every
compound, based upon the way the analysis is set up, will have a definitive
retention time. So we measure the retention times as a marker for specific
compounds.
As
we do this, we also include in the batch, calibration material, which would be
pure compounds of different concentrations. And also quality control material.
Which is really blood samples that contain either negative, no compound, or
presence of some compounds.
So
we’re monitoring the system as it [] goes through. And we compare the responses
of [the] unknown blood sample, the retention time, and the pe[a]k height that
we get from the detector against the calibration materials, quality controls.
So we can get a quantitation of the compound; so we identify, we quantify.
At
the other end after it comes out, is Mass Spectrometer. This is the really
important part of the instrument. Because when the pe[a]ks come out through the
GC 55
part, those new Mass Spectrometer, it’s
like a ray gun, basically, it’s shooting bullets at the compound as it’s
passing through. It fractionates them. Breaks them apart. And it breaks the
molecules apart into pieces of its original molecular weight.
Whether
we do it in Willow Grove, we do it here, or we do it in [] Alaska . . . the
fractionation of that compound is the same.
You
have a book. You look up Cocaine. You get the same pieces of that molecule.
So
we basically have a fingerprint of every molecule that’s moving through that.
And it’s quantified in the system. So we have a fingerprint for cocaine. We
have a fingerprint for Cocaine metabolites.
And
so the Mass Spectrometer breaks it up, gives us a fingerprint, and gives us,
here is the different masses, and compares it against a library. And it says;
this is a 98 percent hit, basically. And so, again, positive identification and
qualification.
And
that’s how we ran the confirmations on each of these type of compounds.
Dr.
Barbieri then identified the drugs that were found in defendant’s blood sample
and the quantities detected. He explained that documents are produced by the
instruments when the testing is performed and that the testing results are
printed directly from the machines. Those documents are compiled for a reviewer
who, in this case, was Dr. Barbieri. Dr. Barbieri testified that he had
available all 957 documents generated during the testing process involved in
defendant’s case when he performed his review and analysis of the data. He 56
reviewed the raw data before preparing his
signed and certified report as the forensic toxicologist on defendant’s
testing. Although in his testimony Dr. Barbieri discussed the nature and
quantities of drugs he found to be present in defendant’s blood, the
machine-generated documents were not admitted into evidence.
The
State also entered Dr. Barbieri’s certified report into evidence through his
live testimony. It is undisputed that Dr. Barbieri did not actually conduct the
initial or confirmatory screening via gas chromatography/mass spectrometry
performed on defendant’s blood. We also have no evidence in this record that
Dr. Barbieri directly observed the individual analysts, who were under his
supervision, as each performed the tasks involved in the testing process.
VI.
We
note at the outset the factual differences between this case and Melendez-Diaz
and Bullcoming.
First,
unlike in Melendez-Diaz, where no witness was offered to testify to the statements
contained in the state lab’s forensic document that was admitted into evidence,
here we are not asked to consider a self-admitting report.
Indeed,
to the extent that, once before, we were presented with an argument that
laboratory certificates issued by the New Jersey State Laboratory could be
regarded under N.J.S.A. 2C:35-19 as self-admitting documents that obviated any
57
confrontation right concerns, we rejected
the notion. See State v. Simbara, 175 N.J. 37, 49 (2002). Instead, we
interpreted N.J.S.A. 2C:35-19 as creating a notice-and-demand procedure for the
assertion -- or waiver -- of a defendant’s right to confront the certificate’s
preparer. Id. at 48-49.
The
NMS report at issue here is outside the purview of N.J.S.A. 2C:35-19 because
the report was the product of a private laboratory. More importantly, the
report was admitted through the live testimony of Dr. Barbieri, the person who
prepared, signed, and certified the report, and Dr. Barbieri was available for
cross-examination on his report. That renders the circumstances of the NMS
report’s admission materially different from those of the report admitted at
trial in Melendez-Diaz.
Second,
the forensic report and testimony admitted in this case differs in several
respects from what happened in Bullcoming. In Bullcoming, supra, the SLD
forensic report was admitted through the testimony of a co-analyst who did not
observe the work of the SLD analyst who performed the testing and who did not
serve as a supervisor or reviewer responsible for certifying the blood alcohol
results obtained by the analyst whose work was referenced in the report. 564
U.S. at __, 131 S. Ct. at 2711-12, 180 L. Ed. 2d at 618. If all we had was a
co-analyst reciting the findings contained in a report that he had not participated
in preparing or evaluated independently, we 58
would be faced with a scenario
indistinguishable from Bullcoming. But that is not the case here.
In
the present matter, Dr. Barbieri supervised the technicians and analysts who
handled defendant’s blood sample and performed the tests on small amounts of
that sample using the laboratory’s gas chromatography/mass spectrometry
machines. But we do not have testimony from someone simply bearing the title of
supervisor. Here we are presented with testimony by a supervisor who was
qualified as an expert in the relevant subjects, and who analyzed the
machine-generated data and produced the certified report in issue.
Dr.
Barbieri reviewed the procedures followed in the testing and personally
reviewed the machine-generated documents, including the readings from
calibration material and quality control material, when reviewing the readings
taken on the aliquots of defendant’s blood.11 He signed the report and
certified its accuracy. The supervisory role that Dr. Barbieri played in the
testing process also required him to be responsible for the testing procedures
utilized by the NMS lab generally and in this case, to be knowledgeable about
the testing, and to be able to evaluate the results generated by the
11 Dr. Barbieri
also reviewed the chain of custody records as part of his review and certified
that the analysis was performed under chain of custody. All of the necessary
documents were turned over in discovery and are not at issue in this appeal. 59
tests run by persons under his supervision
and responsibility. He testified that he had to satisfy himself that the lab’s
procedures and protocols were followed during the testing before issuing his
report.
Dr.
Barbieri’s participation in preparing the report and developing the substantive
conclusions contained therein was real and direct. He evaluated the results of
the testing, found them to be reliable, and produced the report detailing those
results. Moreover, he signed and certified that report. As the reviewer of the
testing process and the author of the report, it was proper for him to testify
to its contents and to answer questions about the testing it reported. The fact
that Dr. Barbieri was testifying in respect of his own report distinguishes him
from the co-analyst in Bullcoming, who merely presented a blood alcohol report
prepared by another SLD co-employee.
With
regard to Dr. Barbieri’s in-court testimony, we note that he explained how he
independently reviewed the machine-generated data and came to his conclusion
about the findings and opinion stated in the report that he authored, signed,
and certified. Dr. Barbieri testified that he reviewed the compiled calibration
and quality control documents and machine-generated test results on defendant’s
blood sample and concluded that they demonstrated that 60
[a]ll the tests were done appropriately,
according to our standard operating procedures, including our quality controls,
calibration, blanks, and all the testing was done. And I believe the results
produced were accurate and true representations of what was there in the blood
of Julie Michaels.
We
conclude that there is no confrontation violation caused by Dr. Barbieri’s use
of nontestimonial calibration and quality control data in preparing his report,
or by his discussion of that data in his testimony. Cf. Sweet, supra, 195 N.J.
at 370-71; Chun, supra, 194 N.J. at 142-44. Other courts similarly have
determined that the introduction at trial of calibration records does not
violate the Confrontation Clause. See, e.g., Pealer, supra, 985 N.E.2d at
907-08; Dyarman, supra, 73 A.3d at 574; Jones, supra, 982 N.E.2d at 428.
To
the extent that the machine-generated results of the tests conducted on
defendant’s blood are of a more directly accusatory nature, we address that
data separately. As noted, the machine-generated documents identifying the
drugs found in defendant’s blood, and quantifying each drug, were not
introduced into evidence, but their content was used by Dr. Barbieri in
preparing his report that stated the drugs found to be present in defendant’s
blood and the quantities detected.
Certainly,
Dr. Barbieri’s report is testimonial, both in his conclusion and in his use of
test results indicating that 61
defendant had specific amounts of certain
drugs in the blood sample taken shortly after her motor vehicle accident. One
can hardly dispute that those conclusions are testimonial in nature, and
Bullcoming, supra, supports such a determination. See 564 U.S. at __, 131 S.
Ct. at 2717, 180 L. Ed. 2d at 623-24. Dr. Barbieri’s report bears all the
indicia of a direct accusation against defendant. As the author of that report,
he is bearing witness against the accused, namely defendant, when the report is
prepared for the State at its request. Because defendant had the opportunity to
confront and cross-examine Dr. Barbieri in court about the results of the
testing that he reviewed and certified, defendant was not denied her right to
confrontation.
Reviewed
in toto, the machine-generated data provided the basis for Dr. Barbieri to
review the test results independently and certify that the results were
accurate and not flawed in some way. Clearly, defendant could not cross-examine
the machines themselves. See Jenkins v. State, supra, 102 So. 3d at 1069
(approving supervisor’s expert testimony after review of gas chromatography
results obtained by nontestifying analyst); see also United States v. Moon, 512
F.3d 359, 362 (7th Cir.) (“[H]ow could one cross-examine a gas
chromatograph?”), cert. denied, 555 U.S. 812, 129 S. Ct. 40, 172 L. Ed. 2d 19
(2008). And we have rejected the argument that defendant’s confrontation rights
could only be satisfied by testimony from all analysts 62
involved in the testing. Defendant’s
opportunity to cross-examine Dr. Barbieri about the testing and its results
provided meaningful confrontation. His testimony is in no way equivalent to the
surrogate testimony provided by the co-analyst from the SLD lab in Bullcoming.
To
be complete, we highlight our point of difference with the dissent. Contrary to
the dissent’s characterization of this record, Dr. Barbieri was not repeating
the findings and conclusions of the analysts who manned the gas
chromatography/mass spectrometry devices. Rather, the findings and conclusions
contained in the report and to which he testified were his own. It was his job
to review and certify the results of the tests performed on defendant’s blood
sample.
Dr.
Barbieri testified that he relied on raw data produced by the machine tests
regarding the levels of alprazolam, cocaine, and cocaine metabolites in
defendant’s system, and drew his own conclusions from that data. He reviewed
the calibration and quality control tests to ensure that the machine was
producing accurate results in order to be satisfied that the machines were
generating true readings when defendant’s blood sample was tested. He explained
the confirmatory test that is performed by the gas chromatography and mass
spectrometry machine and how its results are issued by the machine itself and
are not capable of being misreported or altered by a human 63
being. Dr. Barbieri’s explanation could have
been more fulsome. See e.g., Ortiz-Zape, supra, 743 S.E.2d at 158-59 (setting
forth detailed testimony of co-analyst on workings of gas chromatography/mass
spectrometry machine, whose results witness independently reviewed and
testified to without violating defendant’s confrontation rights). However, as
he explained, the machine process is highly standardized. In the instant case,
the State’s presentation of this supervisor/reviewer’s signed and certified
report, based on his independent review of machine-generated data, through his
live testimony, did not violate defendant’s confrontation rights.
Our
difference with the dissent thus comes down to this: we believe that a truly
independent reviewer or supervisor of testing results can testify to those results
and to his or her conclusions about those results, without violating a
defendant’s confrontation rights, if the testifying witness is knowledgeable
about the testing process, has independently verified the correctness of the
machine-tested processes and results, and has formed an independent conclusion
about the results. The dissent claims that such testimony thwarts a defendant’s
confrontation rights. In the dissent’s view, only testimony by the original
analyst who worked on a test procedure, of any kind, can satisfy a defendant’s
confrontation rights. The majority’s view, and holding, recognizes that
testimonial facts can “belong” to more 64
than one person if the verification and
truly independent review described above are performed and set forth on the
record by the testifying witness.
In
our judgment, Dr. Barbieri satisfied that standard and was not parroting the
testimonial hearsay of another analyst. Rather, he testified to the findings
and conclusions that he reached based on test processes that he independently
reviewed and verified. Permitting such testimony does not value expediency over
constitutional rights, as the dissent claims. Instead, this approach recognizes
the reality that more than one expert can responsibly verify a process, find a
fact to be reliable, and draw a conclusion. Respectfully, we do not accept the
dissent’s inflexible approach to scientific testing that involves
machine-generated data.
In
concluding, as we do on this record, that defendant’s confrontation rights were
not violated, we note that several other jurisdictions similarly have found
that a supervisor or reviewing analyst who reviews and certifies the work of an
analyst or analysts may testify in respect of forensic evidence without running
afoul of a defendant’s confrontation rights.
Specifically,
a number of states have held that there is no Confrontation Clause violation
where a supervisor, who has conducted his or her own independent review of the
data generated by other analysts, testifies to the conclusions he or 65
she has drawn from that independent
analysis. See, e.g., Marshall v. People, supra, 309 P.3d at 947-48 (finding no
confrontation violation where testifying expert was lab supervisor who reviewed
urinalysis test results and prepared, signed, and certified report); Jenkins v.
State, supra, 102 So. 3d at 1069 (finding no confrontation violation where
testifying expert was lab supervisor who reviewed and co-signed report
identifying tested substance as cocaine and was knowledgeable about testing
procedures); Commonwealth v. Yohe, 79 A.3d 520, 540-41 (Pa. 2013) (finding
confrontation rights satisfied by ability to cross-examine supervisor who
analyzed raw data from blood alcohol tests, drew conclusions about
intoxication, and prepared and signed report), cert. denied, 82 U.S.L.W. 3685
(U.S. May 27, 2014); see also Ortiz-Zape, supra, 743 S.E.2d at 164-65 (finding
no confrontation violation where testifying expert was technical reviewer who
testified to independent conclusions based on review of cocaine substance
analysis report as well as all raw data and calibration and maintenance
documentation from testing).
We
recognize that the holdings of various courts around the country have not been
uniform in analyzing Confrontation Clause questions like the one presented
here. Some courts, following Justice Thomas, have adopted an approach that
focuses on the formality and solemnity of the report at issue. See, e.g., 66
People v. Lopez, 286 P.3d 469, 581-84 (Cal.
2012) (finding no confrontation violation where analyst testified based on
colleague’s blood alcohol report and testing because report was unsigned and
consisted entirely of chain of custody log and machine-generated test data),
cert. denied, __ U.S. __, 133 S. Ct. 1501, 185 L. Ed. 2d 556 (2013); Derr v.
State, 73 A.3d 254, 272-73 (Md. 2013) (finding serological and DNA testing
reports introduced through lab supervisor’s testimony insufficiently formal to
be testimonial because unsigned and no statements attesting to accuracy), cert.
denied, 82 U.S.L.W. 3707 (U.S. June 9, 2014).
Another
subset of courts, citing the confusion generated by the fractured Williams
opinions, have not attempted to formulate a general approach for determining
when the introduction of forensic evidence by someone other than the analyst
who performed the tests will violate the Confrontation Clause. See, e.g., State
v. Bolden, 108 So. 3d 1159, 1161 (La. 2012); Deadwiller, supra, 834 N.W.2d at
373. Rather, these courts have resolved the cases before them by drawing analogies
to the specific facts of Williams and holding that, because the facts are
similar, the same result should pertain. Bolden, supra, 108 So. 3d at 1162;
Deadwiller, supra, 834 N.W.2d at 373-75.
We
further acknowledge that a few state high courts have found that a defendant’s
confrontation rights are violated when 67
the analyst who physically performed the
tests at issue does not testify, even when the testifying expert is a
supervisor who reviewed the data generated by the analyst and prepared the
report based on that data. See Martin v. State, 60 A.3d 1100, 1108-09 (Del.
2013) (finding Confrontation Clause violation where lab manager who reviewed
data and wrote report testified about results of blood alcohol tests because
manager did not perform or observe tests and underlying test documents were
testimonial and admitted for truth under Bullcoming); Jenkins v. United States,
supra, 75 A.3d at 189-92 (finding violation where testifying expert was lab
supervisor who prepared report stating DNA profile match but did not perform
underlying tests; test documents were testimonial because prepared for and used
in criminal prosecution). That approach has the advantage of avoiding the
possibility that the United States Supreme Court may one day agree on the most exacting
interpretation of confrontation rights vis-à-vis multiple actors involved in
handling and testing evidence subject to all forms of forensic testing.
However, as noted earlier, that outcome is uncertain. And taking the most rigid
approach to confrontation rights in the context of forensic reports carries
practical drawbacks that range from moderate to severe. It leaves no meaningful
solution where the analyst or analysts no longer work at the lab, are
unavailable, or are deceased. There is a real likelihood that 68
such dilemmas may arise in cold cases.
Further, it cannot be assumed that retesting a sample is invariably a
possibility. Moreover, demanding the in-court testimony of every analyst is
unnecessary for providing the defendant with meaningful cross-examination on
every testing process utilized in forensic examinations.
We
believe that the Supreme Court’s decisions and various opinions in
Melendez-Diaz and Bullcoming have left the states room to apply the
confrontation principles expressed in those cases in meaningful ways, depending
on the nature of the testing that is involved and the independence of the
analysis and review of the person who testifies on the basis of verifiable test
results.
Here
we are satisfied that the machine-calibrated, quality-controlled gas
chromatography/mass spectrometry tests performed on defendant’s blood sample
provided a sound basis for Dr. Barbieri, as an expert in the fields of forensic
toxicology and pharmacology and a person knowledgeable about the testing
process employed, to opine on the drugs found in defendant’s blood and their
likely impact on her at the time the blood was drawn. When a confrontation
challenge is raised, the record must show in detail the basis upon which the
testifying witness soundly has reached his or her conclusion. Here, defendant’s
opportunity to cross-examine Dr. Barbieri satisfied defendant’s 69
right to confrontation on the forensic
evidence presented against her.
VII.
The
judgment of the Appellate Division is affirmed.
CHIEF
JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and
CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion. 1
SUPREME COURT OF NEW JERSEY
A-69
September Term 2012
072106
STATE
OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE
L. MICHAELS, a/k/a LYNN MICHAELS, JULIE LYNN, JOLINE BROOKS, JODIE L. CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
JUSTICE
ALBIN, dissenting.
In
criminal cases, the State routinely retains scientists and analysts to perform
tests on a suspect’s blood to detect the presence of drugs or alcohol. Today,
the majority pronounces that the accused has no constitutional right to
confront the scientist or analyst who actually performs the test. The majority
upholds a criminal conviction based on the expert testimony of a laboratory
“supervisor,” who did not perform, participate in, or observe the analysis of
defendant’s blood test. Indeed, this “supervisor” was used as a conduit to pass
through to the jury the testimonial statements of the real test analysts who
were never subject to cross-examination.
The
Sixth Amendment’s Confrontation Clause generally bars the admission of an
absent witness’s out-of-court testimonial 2
hearsay as a substitute for live in-court
testimony when the accused has not had the opportunity to cross-examine the
absent witness. Crawford v. Washington, 541 U.S. 36, 50-62, 124 S. Ct. 1354,
1363-71, 158 L. Ed. 2d 177, 192-99 (2004). The majority’s opinion cannot be
squared with that principle. More ominously, the opinion is in direct conflict
with Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705, 2713, 180 L.
Ed. 2d 610, 619 (2011), a case in which the United States Supreme Court held
that the State violated the Sixth Amendment’s Confrontation Clause by calling a
non-testing analyst as a substitute witness for the analyst who performed a
blood analysis. However confused the United States Supreme Court’s
Confrontation Clause jurisprudence may be in the wake of Williams v. Illinois,
567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) -- with its plurality,
concurring, and dissenting opinions -- it is doubtful that any member of the
Williams Court would adopt the approach the majority is taking here.
The
purpose of the Confrontation Clause is not to foster expedient trial
procedures, but to ensure that testimonial evidence is tested in the crucible
of cross-examination -- however time consuming or difficult that process may
be. See Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at
199. Thus, chemical analysts who provide out-of-court “testimony” through
laboratory reports must be made available 3
for cross-examination. Bullcoming, supra,
564 U.S. at ___, 131 S. Ct. at 2716, 180 L. Ed. 2d at 622.
Curtailing
confrontation rights is not the answer to the uncertainty in federal
jurisprudence. Although the majority upholds the conviction in this case, it is
chancing the reversal of countless future convictions by rendering an opinion
that may fall below the minimum guarantees of the Sixth Amendment. The majority
may be charting a course that will collide with the next United States Supreme
Court case construing the Confrontation Clause. Law enforcement, if properly
directed, can successfully prosecute cases while conforming to the dictates of
the Confrontation Clause. It has done so in the past.
Whatever
perceived benefits are achieved by the majority opinion, they come at a high
price -- the abandonment of basic principles that underlie our Confrontation
Clause jurisprudence. I therefore respectfully dissent.
I.
A.
The
majority opinion cannot be reconciled with the United States Supreme Court’s
recent Confrontation Clause jurisprudence. One overarching principle remains
clear from that jurisprudence: the admission of testimonial statements 4
from witnesses absent from trial violates
the Sixth Amendment’s Confrontation Clause unless the witnesses are
“unavailable,” and “the defendant has had a prior opportunity to cross-examine”
them. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at
197. A statement is “testimonial” if the primary purpose of making the
statement is to establish a fact as evidence in a later criminal prosecution.
Bullcoming, supra, 564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d
at 620 n.6 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266,
2273, 165 L. Ed. 2d 224, 237 (2006)).
Applying
that test in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S. Ct.
2527, 2532, 174 L. Ed. 2d 314, 321 (2009), the Court held that a laboratory
report identifying a substance as cocaine was testimonial evidence and
therefore its admission at trial, without the testimony of the analyst who
prepared it, violated the Sixth Amendment’s Confrontation Clause. The report in
Melendez-Diaz was created for the specific purpose of serving “as evidence in a
criminal proceeding.” Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2709,
180 L. Ed. 2d at 615.
Bullcoming
presented a variation of the theme in Melendez-Diaz. In Bullcoming, the Court
held that the in-court testimony of a scientist who did not conduct or
participate in any laboratory tests relevant to the case, but who read into 5
evidence the actual analyst’s test results
contained in a certified report, violated the Confrontation Clause. Id. at ___,
131 S. Ct. at 2713, 180 L. Ed. 2d at 619. The facts in Bullcoming are
remarkably similar to the facts in the present case.
In
Bullcoming, the defendant was arrested for driving while intoxicated (DWI). Id.
at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. A blood sample was taken from
him at a hospital and submitted for testing at a state laboratory. Ibid. A
forensic analyst operated a gas chromatograph machine to test Bullcoming’s
blood sample and determined his blood alcohol content (BAC). Id. at ___, 131 S.
Ct. at 2711, 180 L. Ed. 2d at 617. The Supreme Court made the following
observations about the operation of the gas chromatograph machine: “‘[T]he
analyst must be aware of, and adhere to, good analytical practices and
understand what is being done and why.’” Id. at ___ n.1, 131 S. Ct. at 2711 n.1,
180 L. Ed. 2d at 617 n.1 (quoting David T. Stafford, Chromatography, in
Principles of Forensic Toxicology 92, 114 (B. Levine ed., 2d ed. 2006)).
Although the gas chromatograph machine produces a printed graph, securing “an
accurate BAC measurement . . . is not so simple or certain.” Ibid. Indeed, the
“risk of human error [is not] so remote as to be negligible.” Ibid. 6
The forensic analyst determined that
Bullcoming’s BAC was 0.21, a level sufficient to support a conviction for
aggravated DWI. Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617–18. The
analyst was not called as a witness at Bullcoming’s trial. Id. at ___, 131 S.
Ct. at 2711–12, 180 L. Ed. 2d at 618. Instead, the State called Gerasimos
Razatos, a scientist also qualified as an expert in the gas chromatograph
machine but who did not participate in testing Bullcoming’s blood. Id. at ___,
131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live, in-court
testimony” about laboratory procedures, the machine’s operation, and the
results of the BAC test. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619.
In addition, the analyst’s report was admitted as a business record. Id. at
___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618.
The
United States Supreme Court held that Razatos’s surrogate testimony violated
the Confrontation Clause because Bullcoming did not have the opportunity to
cross-examine the forensic analyst who tested his blood. Id. at ___, 131 S. Ct.
at 2713, 180 L. Ed. 2d at 619. According to the Court, the surrogate expert’s
testimony “could not convey what [the forensic analyst] knew or observed about
the events his [laboratory report] concerned, i.e., the particular test and
testing process he employed. Nor could such surrogate testimony expose any
lapses or lies on the certifying analyst’s part.” 7
Id. at ___, 131 S. Ct. at 2715, 180 L. Ed.
2d at 622. Indeed, at trial, Razatos admitted that “‘you don’t know unless you
actually observe the analysis that someone else conducts, whether they followed
th[e] protocol in every instance.’” Id. at ___ n.8, 131 S. Ct. at 2715 n.8, 180
L. Ed. 2d at 622 n.8 (alteration in original). Razatos, moreover, was unable to
testify why the forensic analyst was on unpaid leave. Id. at ___, 131 S. Ct. at
2715, 180 L. Ed. 2d at 622. Thus, the defense could not ask “questions designed
to reveal whether incompetence, evasiveness, or dishonesty accounted for [the
forensic anaylst’s] removal from his work station.” Ibid.
The
Supreme Court reached conclusions relevant to the facts before us. First, “the
comparative reliability of an analyst’s testimonial report drawn from
machine-produced data does not overcome the Sixth Amendment bar.” Id. at ___,
131 S. Ct. at 2715, 180 L. Ed. 2d at 621. Second, the analysts who write
reports that the prosecution introduces must be made available for
confrontation even if they possess “‘the scientific acumen of Mme. Curie and
the veracity of Mother Teresa.’” Ibid. (quoting Melendez-Diaz, supra, 557 U.S.
at 319 n.6, 129 S. Ct. at 2537 n.6, 174 L. Ed. 2d at 327 n.6).
In
her concurring opinion, Justice Sotomayor noted that Bullcoming would have been
“a different case if, for example, a supervisor who observed an analyst
conducting a test testified 8
about the results or a report about such
results.” Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629. Razatos did not
observe the testing of the forensic analyst. Ibid.
B.
The
facts before us are remarkably similar to those in Bullcoming, and yet the
majority reaches a diametrically different result.
Here,
defendant Julie Michaels was charged with vehicular homicide, assault by auto,
and related offenses stemming from a head-on car collision. The State claimed
that defendant was under the influence of drugs at the time of the accident. At
the direction of a police officer, a sample of defendant’s blood was taken at
the hospital where she was treated. The Sussex County Prosecutor’s Office
forwarded the blood sample to NMS Labs in furtherance of its criminal
investigation. NMS Labs submitted back a report entitled “STATE V. JULIE
MICHAELS” authored by forensic toxicologist Edward J. Barbieri, Ph.D.
The
report revealed that defendant had concentrations of cocaine and Xanax in her
blood. According to Dr. Barbieri, defendant’s “alertness, judgment, perception,
coordination, response time and sense of care and caution were impaired
rendering this individual unfit to operate a motor vehicle safely.” The report
failed to reveal that Dr. Barbieri did not conduct, participate in, or observe
any of the blood tests that 9
detected the drugs in defendant’s system.
Dr. Barbieri’s report, which was admitted into evidence, does not name the
analysts who conducted the test, although the discovery, which is referenced by
the majority and is not part of the record, suggests that only two analysts
were involved in the actual testing. Other laboratory employees referred to by
the majority appear to be merely in the chain of custody.
Like
in Bullcoming, the analysts here used a gas chromatograph machine to test
defendant’s blood sample. Like Razatos in Bullcoming, Dr. Barbieri conceded
that “there’s always a human element” involved when a gas chromatograph machine
is operated. Like Razatos in Bullcoming, Dr. Barbieri averred to the procedures
that NMS technicians follow when testing samples. Like Razatos in Bullcoming,
Dr. Barbieri took the test results of the analysts and merely parroted them
before the jury. Like Razatos in Bullcoming, Dr. Barbieri could not testify
about what the forensic analysts “knew or observed” when they performed the
“particular test and testing process,” nor was he in a position to “expose any
lapses” on the part of the analysts. See id. at ___, 131 S. Ct. at 2715, 180 L.
Ed. 2d at 622. Moreover, Dr. Barbieri does not fit within the example given by
Justice Sotomayor in her concurrence of a supervisor who observed the testing
performed by an analyst. 10
In sum, Dr. Barbieri, in his surrogate
testimony, passed through the testimonial statements of the analysts who
actually performed the tests on defendant’s blood, denying defendant her right
of confrontation. This is exactly what Bullcoming says the Sixth Amendment
prohibits. There are no meaningful differences between the case before us and
Bullcoming, except the outcomes.
II.
The
majority contends that, even though Dr. Barbieri conducted none of the blood
tests involved in this case, his testimony is constitutionally admissible
expert testimony under N.J.R.E. 703. The majority concedes that the analysts’
“facts” -- the tests they performed on defendant’s blood sample and the results
they recorded -- are testimonial statements. That Dr. Barbieri relied on facts
or data from the analysts in forming his own opinion does not diminish the
impermissible use of the analysts’ testimonial statements, which were presented
to the jury. Those absent analysts’ tests, moreover, were offered for their
truth -- offered to prove that the substances in defendant’s blood were cocaine
and Xanax. Those tests were not foundational, not calibrations of a machine,
but were the very tests that went to the heart of whether defendant was guilty
of the crimes charged. The majority allows the absent analysts’ 11
testimonial statements to be passed through
Dr. Barbieri to the jury without cross-examination of the analysts.
The
position taken by the majority has not only been rejected in Bullcoming but
also does not find support in either the plurality opinion or dissenting
opinion in Williams v. Illinois. In Williams, supra, the Court divided over the
question of whether a DNA profile, prepared by a specialist who did not
testify, was offered for the truth of its contents. 567 U.S. at ___, ___, 132
S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99, 108 (plurality opinion). Here, the
majority asserts that it is not relying on Williams. The majority, moreover,
does not contest that the analysts’ tests results were offered for their truth
or that the results were testimonial in nature. No justice in Williams
suggested that passing testimonial statements offered for their truth through a
surrogate witness would be acceptable under the Confrontation Clause.
It
may be true that Dr. Barbieri gave an independent opinion. But that opinion was
formed by the testimonial statements of the analysts who performed the tests.
The State cannot deprive the accused of the right to confront the analysts by
the use of a surrogate witness. The core purpose of the Confrontation Clause is
undermined when the accused cannot confront those whose statements bear
testimony against her. 12
The majority opinion will have far-reaching
effects for future cases involving laboratory tests that are critical to
criminal prosecutions. From this point forward, a laboratory -- regardless of
how many scientists are employed there -- can designate one forensic expert to
testify at all trials, relying on the tests of fellow scientists in which he
has had no involvement. The incentive will be to select as the expert witness
the best pitch person, the one who appears to have walked out of Central
Casting. This approach will destroy the ability of the accused to have any
meaningful opportunity to cross-examine the persons who are actually bearing
testimony against her -- the actual chemists or analysts conducting the tests.
III.
The
majority acknowledges that courts throughout the country are reading Williams
and reaching divergent results. We know that Williams is not the last word. If
the United States Supreme Court does not follow the path taken by the majority
today, and if prosecutors take the approach that providing fewer confrontation
opportunities is the better strategy, then countless convictions may be
jeopardized.
Prudence
would dictate that when federal jurisprudence is in a state of flux, a
conservative approach is best. See State 13
v. O’Neill, 193 N.J. 148, 175 (2007)
(affording protections to accused under state law when “[t]he shifting sands of
federal jurisprudence provide no certainty concerning the standard that might
apply to the next set of slightly different facts”). Cautious prosecutors can
still place on the stand the chemist or analyst who actually conducted the test
and will not have to worry about a United States Supreme Court decision
upending a conviction.
IV.
In
the wake of the majority’s opinion, defendants will no longer have the
opportunity to cross-examine the analysts who actually perform scientific tests
-- no longer have the opportunity to expose errors, lapses, and shortcomings in
the testing process. This is a backward step that, I believe, violates the
Sixth Amendment.
For
the reasons expressed, I respectfully dissent. 1
SUPREME COURT OF NEW JERSEY
NO. A-69 SEPTEMBER
TERM 2012
ON CERTIFICATION TO
Appellate Division, Superior Court
STATE OF NEW
JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS
a/k/a LYNN
MICHAELS, JULIE
LYNN, JOLINE
BROOKS, JODIE L.
CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
DECIDED August 6,
2014
Chief Justice
Rabner PRESIDING
OPINION BY Justice
LaVecchia
CONCURRING/DISSENTING
OPINIONS BY
|
DISSENTING
OPINION BY Justice Albin CHECKLIST
|
AFFIRM
|
REVERSE
|
|
|
CHIEF JUSTICE RABNER
|
X
|
||
|
JUSTICE LaVECCHIA
|
X
|
||
|
JUSTICE ALBIN
|
X
|
||
|
JUSTICE PATTERSON
|
X
|
||
|
JUSTICE FERNANDEZ-VINA
|
X
|
||
|
JUDGE RODRÍGUEZ (t/a)
|
X
|
||
|
JUDGE CUFF (t/a)
|
X
|
||
|
TOTALS
|
6
|
1
|
|
No comments:
Post a Comment