Lead Opinion
for the Court:
¶ 1. Danielle Hingle was convicted of sale of morphine, a controlled substance, and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. On appeal, Hingle argues that admission of the testimony of a crime laboratory analyst who reviewed and signed the lab report but did not test the pills violated her Sixth Amendment right of confrontation. She also argues that the trial court erred by admitting the pills due to flaws in the chain of custody. We hold that the trial court did not err by allowing the reviewing analyst to testify or by allowing the pills to be admitted.
Factual Background
¶ 2. On June 21, 2011, Deputy Max Herring met confidential informant Billy Wheater for an undercover operation. After Wheater was searched, Herring, in an undercover role, drove Wheater to Hin-gle’s workplace, a Sonic restaurant in Horn Lake. A video was played at trial showing that, when they arrived, Hingle walked up to the passenger window and Wheater handed money to Hingle. Hingle then handed pills to Wheater. Hingle counted the money and thanked Wheater; then Herring drove off. Herring testified that Wheater held the package Hingle had given him until they arrived at the post-buy location, where Wheater gave the pills to Agent Coleman.
¶3. Gary Fernandez, a drug analyst with the Mississippi Crime Laboratory, testified that he reviewed the results of a test conducted by Bob Reed, which had concluded that the pills contained morphine. Fernandez testified that, although he had not observed Reed performing the test, he had reviewed Reed’s report line-by-line, had reached an independent conclusion that the pills contained morphine, and had signed the report as the technical and administrative reviewer. Hingle testified in her defense, and her primary defense theory was that Wheater had staged the sale to collect the confidential-informant fee. She admitted that Wheater had passed her money to “hold” for him, but she claimed that she had not given him drugs in exchange. She speculated that Wheater had produced the drugs after having concealed them from Herring by hiding them in his navel.
Analysis
¶ 4. Hingle claims that admission of Fernandez’s testimony violated her Sixth Amendment right of confrontation because he only signed off on the lab report, but did not test the pills. She also argues that the trial court erred by admitting the pills into evidence because the State failed to lay a proper foundation due to flaws in the chain of custody.
I. Admission of the reviewing analyst’s testimony did not violate Hingle’s right of confrontation.
¶ 5. Hingle argues that the lower court violated her right of confrontation because the State did not produce Bob Reed, the Mississippi Crime Laboratory analyst who actually tested the pills and determined that they contained morphine. Reed’s re
¶ 6. “Under the plain-error doctrine, we can recognize obvious error [that] was not properly raised by the defendant ... and which affects a defendant’s ‘fundamental, substantive right.’ ” Id. at 682 (¶ 15) (quoting Smith v. State,
¶ 7. Under both the United States Constitution and the Mississippi Constitution, an accused has a right to confront and cross-examine the witnesses against him. U.S. Const, amend VI; Miss. Const, art. 3 § 26 (1890). In Crawford v. Washington,
¶ 8. In Melendez-Diaz, the Supreme Court held that sworn certificates of analysis — stating that the substance taken from the defendant had been tested and found to be cocaine — were testimonial, therefore, the certificates were inadmissible unless the analysts who prepared them were unavailable and there had been a prior opportunity to cross-examine them. Melendez-Diaz,
¶ 9. Applying the rules from Melendez-Diaz and Bullcoming, we have held that a defendant’s right of confrontation is satis
[The analyst] was able to explain competently the types of tests that were performed and the analysis that was conducted. He had performed “procedural checks” by reviewing all of the data submitted to ensure that the data supported the conclusions contained in the report. Based on the data reviewed, [he] had reached his own conclusion that the substance tested was cocaine. His conclusion was consistent with the report, and he had signed the report as the technical reviewer. [He] satisfied the McGowen test because he had “intimate knowledge” of the underlying analysis and the report prepared by the primary analyst.
Grim,
¶ 10. In Conners v. State, former Presiding Justice Carlson wrote a specially concurring opinion to expound on the admissibility of forensic laboratory reports that are testimonial in nature. Because “laboratory work and testing often involve multiple analysts,” there are instances .in which “someone other than the primary analyst who conducted the test can testify regarding the results.” Conners,
The central inquiry for whether a witness can satisfy a defendant’s right to confrontation is twofold. First, we ask whether the witness has “intimate knowledge” of the particular report, even if the witness was not the primary analyst or did not perform the analysis firsthand. [McGowen,859 So.2d at 340 .] Second, we ask whether the witness was “actively involved in the production” of the report at issue. Id. We require a witness to' be knowledgeable about both the underlying analysis and the report itself to satisfy the protections of the Confrontation Clause. If an analyst can discuss competently the analysis performed, as well as the particular document being offered — in other words, the analyst can testify live regarding the testing, methodology, and results of the analysis, rather than simply relying on the document to speak for itself — a defendant is adequately protected by the Confrontation Clause. ...
Id. at 690 (¶ 41) (Carlson, P.J., specially concurring, joined by Waller, C.J., Diekin-
¶ 11. In the instant case, the report itself was not admitted into evidence, but Fernandez testified about the results of the tests.
¶ 12. Regarding the specific test at issue, Reed performed the original test on the substance, and Fernandez acted as the “technical and administrative review.” Fernandez explained that Reed “took one half of two tablets from this particular submission and then he extracted from them the suspected components of it, and he ran it on an instrument called the GC mass spec to determine exactly what was in [it].” Fernandez testifíéd that Reed’s test of the pills had revealed them to contain morphine. He testified that, as the technical reviewer, he went over Reed’s report in detail to ensure that it was correct, and he reached an independent conclusion that the pills contained morphine based his review of Reed’s work. Fernandez signed the report after reviewing it and reaching his own conclusion that the report was correct and that the substance was morphine.
II. The trial court did not err in admitting the pills into evidence.
¶ 14. The pills were admitted into evidence during Fernandez’s testimony. Hingle objected, arguing that the State had failed to lay a foundation for the admission of the pills because the chain of custody had not been established. The trial court overruled the objection and admitted the pills. We review the trial court’s admission of evidence for abuse of discretion. Deeds v. State,
¶ 15. Under Mississippi Rule of Evidence 901, “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Miss. R. Evid. 901(a). The State need not produce every person who has handled the evidence. Deeds,
¶ 16. Hingle complains that the State did not account for what happened to the pills after Hingle gave them to Wheater and that nothing showed that the drugs were handled in a secure, controlled manner. Herring testified that, after Hingle gave the pills to Wheater, Wheater held them until they reached the post-buy location. At the post-buy location, Agent Coleman took the pills from Wheater, put them in a bag, and initialed and sealed the bag. Herring testified that Wheater was searched before and after the transaction. A photocopy of Exhibits 2 and 3, containing the pills, bears a notation stating “Coleman to Evidence 1846.” Fernandez testified that the barcode on the evidence bag that contained the pills showed that they were received by the crime lab and resealed after Reed tested them. The above-described facts do not support a reasonable inference of substitution or tampering. The trial court’s admission of the pills into evidence was not an abuse of discretion.
Conclusion
¶ 17. The admission of the reviewing analyst’s testimony did not violate Hingle’s right to confrontation, and Hingle’s chain-of-custody claim is without merit. We affirm the judgment of the DeSoto County Circuit Court.
Notes
. Agent Coleman did not testify and his first name is not in the record.
. The dissenting justices would overrule Grim and Jenkins, saying they relied on pre-Bull-coming precedent. (Dis.0p.1l1127, 29.) , Be that as it may, that does not render Grim and Jenkins defective. In both cases, the Court recognized Bullcoming and Melendez-Diaz and addressed that line of cases in depth. See Jenkins,
. In a separate opinion in Bullcoming, Justice Sotomayor wrote about several circumstances to which Bullcoming did not apply, including instances "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” Bull-coming,
We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert's testimony did not violate the Sixth Amendment.
Williams,
Dissenting Opinion
dissenting:
¶ 19. For the reasons cogently set forth in the dissents of Presiding Justice Dickinson and Justice Kitchens in Grim v. State,
¶ 20. The United States Supreme Court has held that laboratory reports created to serve as evidence against the accused at trial are within the “core class of testimonial statements” covered by the Confrontation Clause. Melendez-Diaz v. Massachusetts,
Confrontation is one means of assuring accurate forensic analysis. While it is true ... that an honest analyst will not alter his testimony when forced to confront the defendant, ... the same cannot be said of the fraudulent analyst. ... Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony.
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*667 Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.
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[TJhere is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts.
Id. at 318-20,
¶21. In Bullcoming v. New Mexico, — U.S. —,
¶ 22. The Supreme Court faced a variation on this theme in Williams v. Illinois, — U.S.—,
¶23. In this case, Fernandez testified that Reed’s test of the pills had revealed them to contain morphine. He testified that he went over Reed’s report “line by line” to make sure everything was correct, that is, that the report was “what it says it is,” and that the results were commensurate with the testing methods. Fernandez testified that he reached his own conclusion that the pills contained morphine based his own independent review of Reed’s work. Reed’s report was not admitted into evidence. Nonetheless, because the sole purpose of Fernandez’s tes
¶ 24. The facts of today’s case are virtually indistinguishable from those in Bull-coming. As in Bullcoming, the State presented the testimony of an analyst who was familiar with the lab’s procedures but had neither participated in nor observed the test at issue. Relying on Grim v. State,
¶ 25. Applying these rules, the Court in Jenkins and Grim held that the individual defendant’s right of confrontation was satisfied by the testimony of an analyst who had reviewed the report for accuracy and signed it as a technical reviewer. Grim,
was able to explain competently the types of tests that were performed and the analysis that was conducted. He had performed “procedural checks” by reviewing all of the data submitted to ensure that the data supported the conclusions contained in the report. Based on the data reviewed, [he] had reached his own conclusion that the substance tested was cocaine. His conclusion was consistent with the report, and he had signed the report as the technical reviewer. [He] satisfied the McGowen test because he had “intimate knowledge” of the underlying analysis and the report prepared by the primary analyst.
Grim,
¶ 26. Three justices dissented in Grim and four in Jenkins. Grim,
¶ 27. Problematically, the majority relies upon McGowen, which is pre-Craw-ford, pre-Bullcoming precedent, to conclude that testimony from an analyst who has performed procedural checks, but has not performed or observed the test at issue, satisfies the Confrontation Clause. I would find that this Court’s approval of testimony by a supervisor who merely reviewed and signed off on the report of another’s test results does not comport with what is required by Bullcoming. In Bullcoming, the Supreme Court held that testimony by an analyst “who did not sign the certification or perform or observe the test reported in the certification” did not satisfy the defendant’s confrontation rights. Bullcoming,
¶ 28. Fernandez, who merely reviewed a report of a test generated by Reed, lacked personal knowledge of the events of the specific test. Certainly, Fernandez reviewed the test results, was familiar with the testing process, and was equipped to testify on whether the written report showed that the test comported with proper procedures and whether the results of the test were commensurate with the testing devices used. He testified in terms of what Reed “would” have done to conduct the test, and that it appeared from the report that Reed’s result was correct. But he could not testify as to whether Reed had received the sample intact, whether Reed had dropped or mishandled the sample, or whether Reed had encountered any problems with the testing equipment. Additionally, Fernandez’s surrogate testimony could not “expose any lapses ór lies on [Reed’s] part.” Id. at 2715. Fernandez’s testimony did not afford Hingle the opportunity to cross-examine the analyst who had performed or observed the test on what that analyst “knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed,” as required by Bullcoming. Id. I observe that the State could have satisfied the Confrontation Clause here by simply having had Fernandez retest the
¶29. Because Grim and Jenkins are inconsistent with the strictures of Bull-coming, I would overrule those cases. I would hold that, although Fernandez reviewed and signed the test report, because he did not perform or observe the testing of the pills, his surrogate testimony did not satisfy Hingle’s confrontation rights under the Sixth Amendment. Without evidence establishing that the pills contained morphine, the State would not have been able to prove the elements of sale of morphine. Therefore, permitting Fernandez to testify as a surrogate for Reed, in violation of the Confrontation Clause, constituted a manifest injustice amounting to plain error. “[T]he [Confrontation] Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.” Id. at 2716. I would reverse and remand for a new trial.