City of West Fargo, Petitioner v. The Honorable Thomas R. Olson, Judge of District Court, East Central Judicial District, and Brady Duane Johnson, Respondents
No. 20200183
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 8/27/20
2020 ND 188
Opinion of the Court by Jensen, Chief Justice.
Petition for Writ of Supervision. SUPERVISORY WRIT GRANTED.
Elle Molbert (argued) and Stephen R. Hanson (on brief), Assistant City Prosecutors, West Fargo, ND, for petitioner.
Mark A. Friese (argued) and Drew J. Hushka (appeared), Fargo, ND, for respondent Brady Duane Johnson.
[¶1] The City of West Fargo (the “City“) petitions this Court for a supervisory writ directing the district court to vacate a pretrial order requiring the City to produce at trial the individual (or the “Witness“) who initially inspected and reviewed the installation of the Intoxilyzer 8000 testing device used to administer a chemical breath test to Brady Johnson. We exercise our supervisory jurisdiction and vacate the district court order, concluding the Witness did not make any testimonial statements under the Confrontation Clause or Rule 707 of the North Dakota Rules of Evidence requiring the City to produce her at trial.
I
[¶2] The City charged Johnson with driving under the influence following a chemical breath test adminstered by law enforcement using an Intoxilyzer 8000 testing device. Johnson objected to the introduction of the analytical report at trial, arguing cross-examination of the Witness is required under the Confrontation Clause and
II
[¶3] Under
[¶4] The City‘s ability to appeal is limited. See
[¶5] In Herauf, 2012 ND 151, ¶¶ 4-5, we were asked to review whether the State was required to produce at trial the nurse who drew the defendant‘s blood in a DUI case. In Rustad, 2012 ND 242, ¶¶ 6-7, we were asked to review whether the State was required to produce the director of the State Crime Laboratory in a DUI case. We exercised our supervisory jurisdiction in both instances because the State lacked another adequate remedy. Because the City lacks another adequate remedy, we conclude this is an appropriate case to exercise our supervisory jurisdiction.
III
[¶6] The City argues it is not required to produce the Witness at trial under the Confrontation Clause and
[¶7] The Confrontation Clause provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
The United States Supreme Court held this amendment prohibits the admission of testimonial hearsay against the accused, unless the witness is unavailable to testify and the accused previously had an opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). The confrontation clause does not apply to non-testimonial hearsay. Id. See also Davis [v. Washington, 547 U.S. 813, 821 (2006)] (only testimonial statements cause the declarant to be a “witness” within the meaning of the Sixth Amendment).
State v. Duncan, 2011 ND 85, ¶ 13, 796 N.W.2d 672. The United States Supreme Court has outlined what qualifies as testimonial:
[E]x 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; 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.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (quoting Crawford, 541 U.S. at 51-52).
[¶8] In Melendez-Diaz, the United States Supreme Court noted the limitations of the Confrontation Clause:
[W]e do not hold, and 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. While . . . [i]t is the obligation of the prosecution to establish the chain of
custody, this does not mean that everyone who laid hands on the evidence must be called.
557 U.S. at 311 n. 1; see also Herauf, 2012 ND 151, ¶ 9.
[¶9]
(a) Notification to Defendant. If the prosecution intends to introduce an analytical report issued under
N.D.C.C. chs. 19-03.1 ,19-03.2 ,19-03.4 ,20.1-13.1 ,20.1-15 ,39-06.2 , or39-20 in a criminal trial, it must notify the defendant or the defendant‘s attorney in writing of its intent to introduce the report and must also serve a copy of the report on the defendant or the defendant‘s attorney at least 60 days before the date set for the trial.(b) Objection. At least 45 days before the date set for the trial, the defendant may object in writing to the introduction of the report and identify by name or job title a person who made a testimonial statement in the report to be produced to testify about the report at trial. If objection is made, the prosecutor must produce the person requested. If the witness is not available to testify, the court must grant a continuance.
[¶10] ”
[¶11] In Herauf, the defendant was arrested for driving under the influence and submitted to a blood draw. 2012 ND 151, ¶ 2. The nurse conducting the blood draw provided a signed statement that the blood sample was properly drawn. Id. at ¶ 14. The defendant sent the State a subpoena to serve on the nurse, and the State opposed the request. Id. at ¶ 2. The district court concluded the State was required to produce the nurse at trial. Id. The majority of this Court held that the “signed statement contemplated under
[¶12] In State v. Lutz, 2012 ND 156, ¶ 14, 820 N.W.2d 111. we held the State was not required to produce the analyst who prepared the volatiles solution used in a chemical blood test. We concluded that the analyst‘s “expected testimony falls squarely within footnote one of Melendez-Diaz,” which relates to the chain of custody or the accuracy of the testing procedure. Id. at ¶ 8. We noted that the analyst prepared the volatiles solution three months before the defendant was charged with driving under the influence, concluding “[t]here is nothing in the record to suggest that the solution or the statement were prepared under circumstances that would lead [the analyst] or an objective witness to reasonably believe the solution or statement would be used for prosecutorial purposes at a later trial . . . .” Id. at ¶ 8.
[¶13] In Rustad, we held the State was not required to produce the director of the State Crime Laboratory at trial, concluding the director‘s certification of the analytical report was not a testimonial statement, and the record did not establish the director conducted or otherwise participated in the blood analysis. 2012 ND 242, ¶¶ 17, 19. We explained, “The State need not produce designated persons for confrontation purposes if those persons do not make testimonial statements in analytical reports.” Id. at ¶ 19.
[¶14] The City asserts the signed statements from the Witness are non-testimonial for purposes of the Confrontation Clause. We agree. The Witness conducted the initial inspection of the Intoxilyzer 8000 in November 2018, as evidenced in the “Intoxilyzer 8000 Initial Inspection” report, which was approximately ten months before Johnson was charged with DUI. The Witness reviewed the “Intoxilyzer 8000 Installation and Repair Checkout” in December 2018, approximately nine months prior to Johnson being charged. The record does not support a conclusion that she signed these reports in anticipation of their use at a trial.
[¶15] In Herauf, the nurse drew the blood sample and provided a signed statement that the sample was properly drawn to satisfy the requirements of
IV
[¶16] We exercise our supervisory jurisdiction and direct the district court to vacate its order.
Daniel J. Crothers
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte