845 N.W.2d 24
Wis. Ct. App.2014Background
- Police stopped Michael Griep for speeding, detected alcohol, arrested him, and had blood drawn and sent to the state lab; the arresting officer and phlebotomist testified about collection.
- The analyst who performed the blood-alcohol test was unavailable to testify; her lab report was not admitted.
- The lab supervisor (Patrick Harding) testified as a surrogate expert, expressing an independent opinion that Griep’s BAC was 0.152 g/100 mL based on the lab documentation, but admitted he did not perform or observe the test.
- Griep objected under the Confrontation Clause, arguing the supervisor’s testimony effectively admitted the nontestifying analyst’s out-of-court statements.
- The trial court and the court of appeals applied Wisconsin precedent (State v. Williams and State v. Barton) permitting qualified surrogate experts to testify based on another analyst’s work; the court of appeals stayed decision while awaiting U.S. Supreme Court rulings (Bullcoming and Williams v. Illinois).
- After considering Bullcoming and Williams (and the Wisconsin Supreme Court’s later Deadwiller decision), the court affirmed Griep’s conviction, holding Barton controls in Wisconsin and permits surrogate expert testimony where the surrogate renders an independent opinion.
Issues
| Issue | Griep's Argument | State's Argument | Held |
|---|---|---|---|
| Whether surrogate expert testimony about BAC from an analyst who did not test the sample violates the Confrontation Clause under Crawford/Bullcoming/Williams | Surrogate testimony is a subterfuge that puts the unavailable analyst’s testimonial statements before the jury and denies opportunity to cross-examine that analyst | Wisconsin precedent (Williams/Barton) allows a qualified surrogate who renders an independent opinion based on lab materials to satisfy confrontation rights; Melendez-Diaz/Bullcoming disallowed only affidavits/reports admitted without any in-court expert | Court held Barton remains binding Wisconsin law; surrogate testimony is admissible where surrogate gives an independent expert opinion and is available for cross-examination |
| Whether recent U.S. Supreme Court cases (Bullcoming/Williams) overrule or clearly displace Barton | Bullcoming/Williams show a majority treated surrogate introduction as offering hearsay for the truth, undermining Barton | The federal decisions are fractured and do not clearly overrule Wisconsin precedent; Barton/Williams (state) still control in absence of a clear contrary U.S. Supreme Court holding | Court concluded no binding federal precedent clearly overrules Barton; Barton governs |
| Whether Harding’s testimony here was mere conduit testimony vs. independent opinion | Harding was effectively vouching for the absent analyst and the lab result—mere conduit | Harding offered an independent opinion based on lab data and supervisory familiarity with lab procedures; surrogate testimony permitted | Court accepted that surrogate may rely on another’s lab work and render independent opinion; Barton applied to permit Harding’s testimony |
| If admission were error, whether it was harmless | Argued error deprived confrontation right and was not harmless because Harding’s testimony was material to conviction | State argued harmless error or that the court did not rely on the raw blood test result itself | Court observed that, on this record, such an error would not be harmless, but concluded under existing Wisconsin precedent the testimony was admissible |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (established testimonial hearsay rule requiring unavailability and prior opportunity for cross-examination)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (statements in forensic affidavits are testimonial; analyst must testify or be subject to prior cross-examination)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (introducing a forensic report through testimony of a scientist who did not perform or sign it violated the Confrontation Clause)
- State v. Williams, 253 Wis. 2d 99 (2002) (an expert familiar with procedures who renders an independent opinion can rely on another analyst’s work without violating confrontation)
- State v. Barton, 289 Wis. 2d 206 (2006) (applies Williams post-Crawford; permits surrogate expert testimony when surrogate renders independent opinion)
- State v. Deadwiller, 350 Wis. 2d 138 (2013) (Wisconsin Supreme Court discussed and cited Barton favorably in construing confrontation issues)