Lead Opinion
{1} Defendant Jeff Huettl appeals his convictions for one count each of possession of a controlled substance (methamphetamine) and possession of drug paraphernalia. Defendant argues that his rights under both the New Mexico and the United States Constitutions were violated by the warrantless police entry into the motel room in which he was arrested. He also argues that his Sixth Amendment constitutional right to confront witnesses against him was violated when the State failed to present the testimony of the forensic scientist who placed the seized substance on the spectrophotometer machine for testing and, instead, the State presented testimony of a different analyst who interpreted the results of the machine’s data. We affirm.
BACKGROUND
{2} In October 2009, Police Officer John Clay in Roswell, New Mexico, was dispatched to the Frontier Motel to look into an “unknown disturbance” in Room 102 of the motel. From the outside of Room 102, through a gap in the curtains, Officer Clay observed Defendant sitting at a table using a lighter under a spoon attempting to heat up an unknown substance and then attempting to draw the substance into a syringe. Based on his training and experience, Officer Clay deduced that Defendant was preparing illegal narcotics (either methamphetamine or heroin) for injection. Officer Clay called for back-up, then went to the motel office to get a key for Room 102. Two fellow officers arrived; Officer Clay was concerned that if they did not enter the room immediately, the supposed illegal substance would be lost or
{3} In regard to the laboratory tests that proved the evidence included methamphetamine, the State presented forensic scientist and forensic lab supervisor, Shawn Hightower. Mr. Hightower explained that the evidence was analyzed using an infrared spectrophotometer, an instrument that directs infrared light onto the sample. Because different compounds transmit and absorb infrared light at different rates, the instrument generates data that gives analysts a “clear picture” and a “unique picture” of different compounds. The raw data produced by the spectrophotometer is interpreted by an analyst. As to the evidence in this case, Mr. Hightower reviewed the data and formed an expert opinion that the residue from the spoon and the substance from the plastic bag were methamphetamine. Mr. Hightower did not personally place the evidence onto the spectrophotometer because that aspect of the testing was done by another lab analyst, Karla Nardoni.
{4} A jury found Defendant guilty of possession of methamphetamine and possession of drug paraphernalia. On appeal, Defendant contends that the district court erred in denying his pretrial motion to suppress evidence, which was made pursuant to an argument that the warrantless police entry into Room 102 was not justified by any exception to the warrant requirement. Defendant further contends that the district court erred in permitting Mr. Hightower to testify about the spectrophotometer testing because “[Mr.] Hightower . . . was not the person who actually tested the purported methamphetamine.” According to Defendant, because he did not have an opportunity to cross-examine Ms. Nardoni, he was deprived of his Sixth Amendment right to confrontation.
{5} For the purpose of conducting a thorough analysis of Defendant’s confrontation claim, we requested supplemental briefing. The parties were asked to respond to the proposed conclusion that Defendant’s confrontation right had been violated by the State’s presentation of Mr. Hightower’s testimony insofar as his testimony necessarily implied the propriety and correctness ofMs. Nardoni’s testing process. In our order for supplemental briefing we also proposed the theory that Mr. Hightower’s testimony, insofar as it relied uponMs. Nardoni’s work, “was effectively the functional equivalent of ex parte in court testimony” which was “no different than if a report containing the details of the conduct of the testing process . . . had either been relied on alone, or had been identified by a testifying surrogate^]”
{6} We hold that exigent circumstances justified the officers’ warrantless entry and that the court did not err in denying Defendant’s motion to suppress. We further hold that because the evidence shows that Ms. Nardoni’s role in the actual testing process appeared to have been limited to simply placing the substance onto the spectrophotometer, and because Mr. Hightower testified only as to his own analysis and interpretation of the data generated by the spectrophotometer, concluding that the evidence contained methamphetamine, Defendant’s right to confrontation was not violated. Accordingly, we affirm.
DISCUSSION
The Suppression Issue
{7} Defendant unsuccessfully moved before trial to suppress “all evidence and statements obtained in violation of Article II, Section 10 [] of the New Mexico Constitution and the Fourth Amendment [to] the United States Constitution.” The motion was premised on Defendant’s contention that the police entry into Room 102 was “warrantless and without basis in any exception to the warrant requirement.” “An officer’s warrantless entry into a person’s home is the exact type of intrusion against which the language of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution is directed.” State v. Gutierrez,
{8} In denying Defendant’s motion, the district court entered the following conclusions of law.
2. Officer Clay observed Defendant in plain view and had probable cause to believe that Defendant was in the act of possessing and using illegal drugs.
3. OfficerClay had probable cause to believe that Defendant was engaged in illegal activity and that if immediate entry into the room was not made[,] that evidence would be lost or destroyed.
4. Exigent circumstances existed for Officer Clay and the other officers to enter the room and seize the items observed without a warrant.
5. Defendant did not have a reasonable expectation of privacy to that which could be observed by Officer Clay through partially opened curtains when Officer Clay was standing on a common walkway where anyone could see through the window without intruding into the room or using artificial means to observe.
6. Defendant’s rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 oftheNew Mexico Constitution were not violated.
(Citations omitted.)
{9} On appellate review of a motion to suppress evidence, we review the district court’s factual determinations for substantial evidence and its legal determinations de novo. State v. Ketelson,
{10} Relying on State v. Garcia,
{11} Warrantless entry into a residence under the exigent circumstances rule requires probable cause plus exigent circumstances. State v. Nance,
{12} “Exigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or ... to forestall the imminent . . . destruction of evidence.” Campos v. State,
{13} The district court did not err in concluding that an exigency justified the officers’ warrantless entry into Room 102. Officer Clay testified that Defendant’s apparent intention to “shoot-up” presented two exigencies: the destruction of evidence that would occur if Defendant were to inject himself with the suspected illegal drugs; and the possibility that, as is “typical for I.V. drug users,” Defendant would overdose.
{15} Finally, to the extent that Defendant requests reversal on the basis of Officer Clay’s alleged untruthfulness regarding his observation of Defendant “ ‘cookfing]’ methamphetamine for injection,” we are not persuaded. Defendant’s argument in this regard is based upon the testimony of a former drug user, who testified to having injected methamphetamine “an infinite number of times” and who stated that he, personally, had never cooked methamphetamine before injecting it, nor had he ever heard of or seen anyone doing so. The jury was free to draw its own conclusions regarding the credibility of the witnesses, and we will not second-guess its determination, nor will we reweigh the evidence nor substitute our own judgment for that of the jury. State v. Garcia,
The Confrontation Clause Issue
{16} Under the Sixth Amendment to the United States Constitution, “every criminal defendant shall enjoy the right ... to be confronted with the witnesses against him.” State v. Tollardo,
{17} Current Confrontation Clause jurisprudence stems from Crawford v. Washington,
{18} It is against this historical backdrop, the Crawford Court concluded, that the Sixth Amendment must be interpreted. Id. at 50. Focusing on “the principal evil at which the Confrontation Clause was directed},]” i.e., “the civil[]law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused},]” the Court turned to the language of the Confrontation Clause, particularly its application “to ‘witnesses’ against the accused}.]” Id. at 50-51. “}I]n other words,” the Court explained, the Confrontation Clause applies to “those who ‘bear testimony.’ ‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51 (alteration and citations omitted). Thus, the Court instructed, the Confrontation Clause applies specifically to testimonial out-of-court statements. Id. at 51.
{20} Following Crawford, the Supreme Court decided three cases that are pertinent to our analysis insofar as they involved scientific reports: Williams,
{21} In Bullcoming, the laboratory report of a non-testifying analyst that reflected the defendant’s blood alcohol content was admitted into evidence at the defendant’s trial in violation of the defendant’s confrontation right. Bullcoming,
{22} In Williams, the plurality held that the defendant’s confrontation right was not violated by the prosecution’s presentation of testimony of a laboratory analyst who, having
{23} The plurality in Williams held that the outside laboratory’s DNA report was not admitted for the truth of the matter asserted therein; but, the plurality explained, even if it had been admitted for its truth, they “would nevertheless conclude that there was no Confrontation Clause violation.” Id. at 2239-40,2242. Relying on its Crawford historically based interpretation of the Confrontation Clause, the plurality reiterated that the “Confrontation Clause ... prohibits] modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right.” Williams,
{24} In support of his claimed confrontation right violation, Defendant argues in his brief-in-chief that he was deprived of his right to confrontation when the State failed to produce Ms. Nardoni for cross-examination. Relying on Bullcoming, he reasons that, because Ms. Nardoni performed the “initial part of the testing},]” he had a right to confront her on issues surrounding the following:
the receipt of the substance from the police, the removal of the substance from the package, the confirmation of the substance’s condition and the cross-reference of the substance’s identification with the accompanying paperwork, the actual physical placement of the substance onto the infrared spectrophotometer and the initiation of the testing together with the confirmation that the testing was done properly and without [the] possibility of contamination or confusion with a different substance}.]
{25} In supplemental briefing, Defendant essentially reiterates the argument of his brief in chief, stating that he was deprived the opportunity to confront Ms. Nardoni “regarding the actual testing process of the sample at issue.” Additionally, in response to our request for supplemental briefing, Defendant argues that the court erred in permitting Mr. Hightower to testify because it constituted the presentation of Ms. Nardoni’s testimonial statement which was “no different than if [Ms. Nardoni’s] report alone had
A. Claimed Right to Confront Ms. Nardoni
{26} Considering Defendant’s claim from a Crawford perspective, we do notbelieve that Ms. Nardoni’s participation in the testing process bore any resemblance to the abuses at which the Confrontation Clause was directed. See Crawford,
{27} In short, no testimonial statement by Ms. Nardoni or a functional equivalent was admitted as evidence against Defendant. See Crawford,
{28} Williams, Bullcoming, and Melendez-Diaz do not support the notion that a defendant has the right to confront a laboratory analyst who, having participated in some aspect of evidence analysis, nevertheless did not record any certifications, statements, or conclusions that were offered as evidence. Unlike the analysts in Bullcoming and Melendez-Diaz, Ms. Nardoni did not make, and the State did not seek to admit, any formal statements or declarations as to her testing process or as to her conclusions. Thus, unlike the affidavits in Melendez-Diaz and the certifications in the report in Bullcoming, no out-of-court statement of Ms. Nardoni’s was offered or admitted into evidence that fell within, or even resembled, the core class of testimonial statements that are concomitant with the confrontation right. See Bullcoming,
{29} Nor does Williams, with its admonition against “strainfing] the constitutional text” by extending the reach of the Confrontation Clause beyond that which resembles “the historical practices that the Confrontation Clause aimed to eliminate},]” support Defendant’s argument that he had a right to confront Ms. Nardoni. Williams,
{30} Defendant is left solely with a chain-of-custody attack based on the fact that Ms. Nardoni did not testify at trial regarding her placement of the evidence onto the spectrophotometer. In fact, at trial, Defendant argued that the State had not produced affidavits from the analyst who actually fed the substance into the machine and from the police evidence custodian and, therefore the foundation was insufficient because the chain of custody had failed. Defendant faced an upstream battle on this issue. Chain-of-custody testimony by Officer Clay and Mr. Hightower established that the substance in question was transported by Officer Clay from the motel room to the police department, where it was field tested, booked into “property” (a secure area of the police department), and then sent by Detective Fresquez from the police department to the laboratory.
{31} The absence of Ms. Nardoni’s testimony regarding her role in the chain of custody went to the weight of the evidence not to the admissibility of it. See Melendez-Diaz,
{32} Defendant nevertheless asserts that Bullcoming stands for the proposition that chain-of-custody issues “bear with them confrontation rights,” thereby arguing that he had a right to confront Ms. Nardoni regarding her role in the chain of custody. The aspects of the Bullcoming analysis upon which Defendant rests his claim stand for the proposition that where an analyst has formally certified that she has properly performed specific chain-of-custody activities, and where that formal certification has been admitted into evidence, the defendant has a right to cross-examine the certifying analyst. Bullcoming,
{33} In sum, under the circumstances of this case, we do not believe that Ms. Nardoni’s role in the testing process gave rise to a Sixth Amendment right to confrontation. The Confrontation Clause applies specifically to the admission against a defendant of ex parte out-of-court testimony or its functional equivalent. In this case, no Ms. Nardonigenerated testimony or testimonial statement or its equivalent existed or was offered or admitted in evidence, and we see no legal basis upon which to conclude that Ms. Nardoni’s activity came within the confrontation requirement. We turn now to Defendant’s alternative confrontation violation theory.
{34} The Confrontation Clause “forbids the introduction of testimonial hearsay as evidence in itself, but it in no way prevents expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.” United States v. Johnson,
{35} Since the Supreme Court’s Crawford decision, there has emerged a clear divergence between two types of expert testimony in cases involving the presentation of scientific evidence, one permissible and one impermissible. What has emerged as clearly permissible under the Confrontation Clause and under the Federal Rule of Evidence 703, and the identical New Mexico Rule of Evidence, Rule 11-703 NMRA, is expert, scientific testimony based upon facts or data of which the expert has been made aware, even when those facts or data would otherwise be inadmissible, provided that the expert testifies only to his or her own, independently derived conclusions. See, e.g., Moon,
{36} In other words, an expert who has analyzed the raw data generated by another analyst and who has formed independent conclusions based upon that analysis may testify as to those conclusions. See Williams,
{37} What has emerged as clearly impermissible is an expert’s testimony which is based solely upon a non-testifying analyst’s analysis and conclusions. See, e.g., Bullcoming,
{38} Under this impermissible scenario, the expert will have failed to form an independent opinion and is merely acting as a conduit for the presentation of a non-testifying witness’s testimonial hearsay. See Johnson,
{39} While Defendant would have us hold that Mr. Hightower’s testimony falls into the impermissible category, the facts of this case do not permit such a conclusion. Mr. Hightower testified only as to his own analysis of the raw data generated by the spectrophotometer and to his independent conclusion based on his analysis of that raw data. His testimony was permissible under Rule 11-703. Further, he did not testify as to any testimonial statement or conclusion of Ms. Nardoni.
Response To The Dissent
{40} The dissent in over two pages discusses “the science and technology on which the infrared spectrophotometer test is based.” Dissenting Op. ¶ 52. None of this was before the district court. In that discussion, the dissent characterizes the spectrophotometer test as consisting of two essential component parts: (1) focusing the beam on the sample of an unknown substance and (2) comparing the graphical chart produced by the machine to the graphical charts of known substances. Dissenting Op. ¶¶ 53-54. As to the first part, the dissent lists three safeguards that Ms. Nardoni needed to take to ensure that there was no cross-contamination of the unknown substance. Dissenting Op. ¶ 54. According to the dissent, because Ms. Nardoni was not able to testify about these safeguards, Defendant’s right to confrontation was violated.
{41} There are two problems with this analysis. First, the record only has testimony regarding one safeguard. While Mr. Hightower was asked general questions about cleaning the surface of a spectrophotometer, no other possible safeguard was mentioned at trial. Secondly, there is a lack of preservation. The record reveals that Defendant at no time actually objected on confrontation grounds in relation to any particular safeguard, including the cleaning aspect of the testing. His objection was simply that Mr. Hightower was not the analyst who placed the evidence on the spectrophotometer.
{42} Even if we were to assume that the issue was preserved, our reading of supporting case law also differs from that of the dissent. The dissent principally relies on Bullcoming and on two cases decided only a few months apart by the District of Columbia Court of Appeals, Roberts v. United States,
{43} The dissent cites to the text at footnote 1 in Bullcoming. Dissenting Op. ¶ 56. The footnote describes to some degree the standard testing protocol for gas chromatography. The text is a general statement that says that “[sjeveral steps are involved in the
{44} The dissent’s reliance on Roberts and Veney, Dissenting Op. ¶¶ 60-62, both DNA cases, is unhelpful. First, these two cases, from one court and decided within months of one another, do not represent Supreme Court case law, and the dissent cites no other circuit courts that agree with the analyses in these cases. Second, these cases predate Williams, Bullcoming, and Melendez-Diaz. It would require a full-scale, separate analysis here as to how the analyses and results in those cases would have been affected by the Supreme Court’s recent confrontation jurisprudence. In fact, Williams can be read to express the view that for confrontation purposes, in a DNA case, it should not be necessary to have all of the various analysts testify. See Williams,
{45} Finally, the dissent over-simplifies and incorrectly asserts our positions in this Majority Opinion. We do notbelieve that had the State “been allowed to introduce the chart into evidence as [Ms. Nardoni’s] ‘report’ through Mr. Hightower, Defendant’s confrontation rights would have been violated.” Dissenting Op. ¶ 58. To the contrary, as explained in this Opinion, viewed through a Crawford lens and carried forward in Williams, Ms. Nardoni’s participation in the testing process bore no resemblance to the abuses at which the Confrontation Clause is directed. See Crawford,
CONCLUSION
{46} For the foregoing reasons, we affirm Defendant’s convictions.
{47} IT IS SO ORDERED.
I CONCUR:
Concurrence in Part
{48} I concur in the suppression issue disposition, but respectfully dissent in regard to the confrontation clause.
{49} The Sixth Amendment directs: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him[.]” Crawford holds that the right of confrontation protected by the Sixth Amendment applies to “testimonial” out-of-court statements.
{50} Crawford does not set forth a comprehensive definition of what constitutes a “testimonial statement.” Rather, Crawford sets forth various formulations of the “core class of‘testimonial’ statements” to which the confrontation right extends. Id. One such formulation is “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 52 (internal quotation marks and citation omitted).
{51} In this case, Officer Clay seized the evidence from Room 102 that was used to convict Defendant. The evidence included a spoon and a plastic bag, both of which contained an unknown white crystalline substance, and they were sent to the State forensic laboratory in Hobbs for analysis. The evidence was collected in a criminal case for possession of a controlled substance, the evidence was sent to the State forensic laboratory for the express purpose of proving that it contained a controlled substance, and using the results of that test in a criminal prosecution to prove an essential element of the crime against Defendant. The laboratory test results were therefore clearly statements “that were made under circumstances which would lead an objective witness reasonably to believe that the statements] would be available for use at a later trial}.]” Id. (internal quotation marks and citation omitted). As such, the laboratory test results constitute “testimonial” out-of-court statements under the Confrontation Clause of the Sixth Amendment.
{52} To answer the question before us requires that we determine what the results of an infrared spectrophotometer test consist of. Thus, I begin with the science and technology on which the infrared spectrophotometer test is based.
The Fourier Transform Infrared Spectrophotometer (FTIR) was developed from the base technology of an Infrared Spectrometer (IR) which was first discovered at the turn of the century. Infrared radiation refers to the wavelengths of light that are just beyond the color red in the visible spectrum of light. Infrared radiation is absorbed by various materials in different ways. This variance in absorption is measurable by sensors contained within an IR and an FTIR as infrared radiation is passed through a sample of material. The traditional IR was little more than a prism disbursing light.
The FTIR expanded upon the IR technology with a two}-]way mirror device which splits the single beam of infrared light into two beams — passing one beam through the sample of material and then putting the two beams back together. Thereunited beam of light now has different characteristics than it originally did based upon the absorption of various wavelengths of light by the unknown sample of material. A complex mathematical equation (named a Fourier Transform) is then applied to the wavelengths in order to separate out the intensity of each independent wavelength. The computer within the FTIR then produces a graphical representation of those wavelengths which can be compared visually and with computer aids against graphs produced by known substances.
People v. Roraback,
{53} Thus, there is one infrared spectrophotometer test which consists of two essential component parts. First, an infrared beam of light is focused onto a sample of an unknown substance. This results in a graphical pattern of energy peaks and valleys which is reported on a graphical chart prodirced by the machine because different substances absorb infrared light at different wavelengths and degrees. Second, the graphical chart of the unknown substance produced by the machine is compared to a library of graphical charts of known substances (reference charts), and when there is a match between the charts, a conclusion can be made about what the unknown substance is. The first part of the test was performed by Ms. Nardoni, who did not testify, and the second part was performed by Mr. Hightower, who did testify. Further, the analysis undertaken in the second part of the test by Mr. Hightower is only valid if the work performed in the first part was properly performed by Ms. Nardoni.
{54} As the forensic scientist who performed the first part of the test, Ms. Nardoni was required to take measures to ensure that the machine obtained an accurate graphical representation of the wavelengths of the unknown substance. Mr. Hightower testified that to insure there is no cross-contamination with the unknown substance being tested, safeguards must be manually performed for each test: (1) only one case is tested at a time so that substances from other cases are not all out at one time; (2) the person doing the test must make sure all of the lab area is cleaned before any future test is performed; and (3) the surface where the material is placed inside the spectrophotometer must be cleaned before each test is performed. However, Mr. Hightower was unable to testify whether these safeguards were performed by Ms. Nardoni, and he could not comment on whether any other required steps to insure a valid result were performed by her, “because I didn’t see those tests.”
{56} The Bullcoming Court noted that “[s]everal steps are involved in the gas chromatograph process, and human error can occur at each step.” Id. at 2711. The Court added that while the state had presented testimony that an accurate B AC measurement merely entails looking at the machine and recording the results, “the matter is not so simple or certain” because the analyst “must be aware of, and adhere to, good analytical practices and understand what is being done and why.” Id. at 2711 n.l. The Supreme Court further observed, “Errors that occur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps” and that “93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples.” Id. (internal quotation marks and citation omitted). At footnote 7, the Supreme Court added that the testimony of the analyst who performed the test under oath “would have enabled Bullcoming’s counsel to raise before a jury questions concerning [his] proficiency, the care he took in performing his work, and his veracity.” Id. at 2716 n.7.
{57} Mr. Hightower could not present any testimony or evidence of what Ms. Nardoni did, how she did it, or why. All that Mr. Hightower had was the graphic chart which the spectrophotometer machine produced as a result of her actions. Mr. Hightower then told the jury that in his opinion, the known reference graph pattern of methamphetamine matched the graph pattern of the unknown substance which Ms. Nardoni produced.
{58} It seems clear, and the majority does not appear to dispute, that if Ms. Nardoni had dated and signed the chart of the unknown substance produced by the machine, and the State had been allowed to introduce the chart into evidence as her “report” through Mr. Hightower, Defendant’s confrontation rights would have been violated. See id. at 2709-10, 2717-18; Melendez-Diaz,
{59} I first note that the case law addressing whether the work of a non-testifying expert has been admitted and considered as substantive evidence in a jury trial is extremely limited. The majority fails to cite to any applicable authority, and I have only found two cases, both of which predate Melendez-Diaz, Bullcoming, and Williams.
{60} In Roberts v.
{61} Similarly, in Veney v. United States, the prosecution’s expert testified that the defendant’s DNA matched DNA formd on various articles of the victim’s clothing.
{62} Veney and Roberts are directly on point. In the case before us, Mr. Hightower testified that he referred to the graphic chart of the unknown substance produced by Ms. Nardoni’s operation of the infrared spectrophotometer and that the graphic chart of the unknown substance matched the reference graphic chart of methamphetamine. Majority Op. ¶ 3. Mr. Hightower’s testimony that the two charts are the same resulted in the chart of the unknown substance being admitted
{63} The majority also concludes that the spectrophotometer graph generated by the machine is not a “statement” and therefore it “was not a testimonial statement.” Majority Op. ¶ 26. In support of this conclusion, the majority relies on Moon,
{64} The unknown substance in this case was tested so the results could be used against Defendant in a criminal prosecution against him. The results clearly constituted a testimonial statement and without testimony from the person performing the test, inadmissible under the Confrontation Clause. That was the factual backdrop and result in Bullcoming, Melendez-Diaz, and Crawford. See Bullcoming,
{65} Moreover, Williams is of no assistance to the result reached by the majority here. Williams was a bench trial without a jury in which an expert witness in forensic biology and forensic DNA analysis testified that in her opinion, DNA profiles produced by two separate tests matched.
{66} Finally, I disagree with the majority that Mr. Hightower gave his conclusions based on his independent evaluation of Ms. Nardoni’s work product. Majority Op. ¶ 39. Because an infrared spectrophotometer test is performed in two distinct parts, and Mr. Hightower could not evaluate whether Ms. Nardoni properly performed the first part of the test, he was in fact used as a “mere conduit” to present her testimonial hearsay evidence to the jury. Melendez-Diaz notes that confrontation and cross examination are designed to “weed out not only the fraudulent analyst, but the incompetent one as well” and notes that “[sjerious deficiencies have been found in the forensic evidence used in criminal trials.”
{67} Unlike my colleagues in the maj ority, I conclude that a testimonial statement (the graphic chart) of a witness (Ms. Nardoni) was admitted into evidence in violation of Defendant’s right under the Confrontation Clause of the Sixth Amendment because Defendant was unable to cross-examine Ms. Nardoni. I therefore dissent.
Notes
The majority asserts, “there is a lack of preservation.” Majority Op. ¶ 41. Respectfully, I disagree. Even the State acknowledges in its answer brief that when Defendant objected to Mr. Hightower rendering an opinion about the evidence, “Defendant argued Mr. Hightower’s opinion testimony would violate his right of confrontation because Mr. Hightower was not the analyst who had placed the evidence on the spectrophotometer and Mr. Hightower did not have firsthand knowledge of the chain of custody from the time the evidence left the Roswell Police Department.” This was sufficient to preserve the issue for our review. See State v. Griffin,
The majority asserts that “the record has only testimony regarding one safeguard” which consists of cleaning the surface of the spectrophotometer, Majority Op. ¶ 41; that “the only human error possibly at issue is whether the surface upon which the substance was placed may not have been cleaned,” Majority Op. ¶ 43; and that “the only question that defense counsel might have raised could have been whether Ms. Nardoni properly cleaned the equipment’s surface.” Id. These assertions are refuted by the actual testimony. During Mr. Hightower’s testimony a note was sent by the juiy asking about cross contamination. The court then asked the following questions, and Mr. Hightower answered as follows:
Q. Mr. Hightower I have few questions for you.
A. Yes sir.
Q. Has there ever been a time where cross-contamination occurred?
A. We have several preventive measures against that, and to my knowledge no, there’s never been a time we only do, all we do one case at a time so we don’t have all the cases out at once and we make sure our lab area is clean before any future cases are done and in the case of the infrared spectrophotometer the material is placed right on it. It’s cleaned before the next sample and a background is actually run before to make sure that it is clean and, if it wasn’t cleaned, you would actually be able to see it on the examining surface and the test wouldn’t proceed so, to my knowledge, no.
Q. Is the evidence and I believe it says, other substance or your substance side by side during testing?
A. That, the . . . the evidence, the items possibly could be side by side like I said case wise, there would be no other cases open at this . .. besides this case right here. So, yes there are times when you line up your vials and you will.. . you will do the items to .. . . They’ll be side by side but as far as any other cases, no.
Q. If a machine can give a false, positive, or negative, is there a way to do a manual test and was that performed. Was oneperformed?
A. The manual test uh . . .
Q. And maybe I need to make it clearer, and it appears to be two parts to the question. And, I’ll just quote it. “A machine can give false, positive, or negative. Is there a way to do a manual test and was one performed?”
A. There is .... I think .... There’s a manual test on the instrument, um that we test the standard that’s part of our weekly test. I’m not sure if that’s what you’re asking. There are other manual tests as far such as color tests and stuff like that. , Those are performed um but, Ireally can’t testify to that, because I didn’t see those tests. So, I can testify to this data, since I wasn’t there to see any other color tests or anything like that I can’t comment on those.
“United States v. Blackburn,
On the other hand, if the computer-generated assertion is produced without any human assistance or input, it cannot be considered a person’s assertion. See United States v. Hamilton,
Peter Jamison, SFPD Crime Lab’s DNA Evidence Could Be Tainted by Concealed Mistakes, SF Weekly, Dec. 15, 2010, available at http ://www. sfweekly. com/2010-12-15/news/sipd-s-trou bled-crime-lab-more-evidence-of-screwups-and-coveru ps/; Eugenie Samuel Reich, Boston Scandal Exposes Backlog, Nature, Oct. 9, 2012, available at http://www.nature.com/news/boston -scandal-exposes-backlog-1.11561; David Boeri, State Lab Chemist Told Police She Intentionally Falsified Test Rerato,WBUR, Sept. 27, 2012, available at http://www.wbur.org/2012/09/27/annie-dookhan-state ment.