State v. Moss

hearing, we vacate timely request for order of October

Commission’s the Commission this matter to

remand proceedings.

further McGREGOR, RUTH V.

CONCURRING: HURWITZ, D. Justice and ANDREW

Chief

Justice. Arizona, Appellant,

STATE of MOSS,

Troy Appellee. Richard

1No. CA-CR 05-0306. Arizona, Appeals

Court of 1, Department D.

Division

May

Ortiz, Phоenix, Deputy County Attorney, At- torneys Appellant. Haas, Maricopa County

James J. Public Defender, Krull, R. Deputy Charles Pub- Defender, Noble, lic Deputy Karen M.V. Defender, Phoenix, Public Attorneys Ap- pellee.

OPINION GEMMILL, Judge. appeals 1 The pre- the trial court’s precluding

trial order the State’s toxi- cologist testifying from of tests performed by of Defendant’s blood non-testi- fying offering opinions "witnesses and from based on the test results. The trial permitting concluded that this testimo- ny from the State’s would violate De- right fendant’s сonstitutional confront against agree witnesses him. We and there- fore affirm.

I. Troy 2 Defendant Richard Moss was charged aggravated with two counts of as- sault, endangerment, two counts of one count possession dangerous drugs, or use of possession drug one count of parapherna- ‍‌‌​​‌​​​​​​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‍lia.1 Following the trial court’s lim- decision iting testimony expert, State’s preju- these counts were dismissed without dice on the State’s motion. charges arose from an automobile allegedly running

accident caused Moss vehicle, light in red a stolen which in turn injuries endangered caused serious to or occupants of other vehicles. Law enforce- ment pursu- officers drew blood from Moss sample ant to a search warrant and sent the private to a laboratory California to deter- presence drugs. According mine the State, laboratory revealed ng/ml methamphetamine level of 360 and an Goddard, Terry General, Attorney By amphetamine ng/ml. private level of 63 Howe, Counsel, laboratory operating Randall M. Chief Criminal ceased and the State Thomas, Appeals P. per- Section Andrew could not locate the criminalists who Maricopa County Attorney, by testify Elizabeth B. formed the of Moss’s blood to charged years prison. 1. Moss was also with unlawful use of and he was sentenced six transportation. means of This count was sev- This court affirmed that conviction and sentence. guilty charge ered. A found Moss of that granted Moss’s motion Ray- sible. The court sought trial.2 The State Kеlly regard- private Kelly, preclude mond former director of laboratory, any opinions offer ing results and the test by methamphetamine impaired person per- Moss was “unless on review of the blood test the is as the of blood called formed evaluation, recognition expert and drug the subject to cross examination.” witness and reports. intended police the The State also ¶ prejudice of 6 the dismissal without After Kelly testify to blood test to have Dr. the by trial counts affected court’s six testimony from in lieu results themselves timely appealed. We ruling, State non-testifying criminalists. Arizona Arti- jurisdiction Constitution under ¶4 motion, sought pretrial In a Moss 6, 9, Revised cle and Arizona Stat- Section Kelly testifying to the preclude Dr. from 12-120.21(A)(1) (“A.R.S.”) utes sections express- and results of the blood tests from (2001). (2003)and 13^1032 any ing opinion based on those results. Kelly argued that Dr. did not Moss because II. tests, perform testimony would vio- such rights late Moss’s under Confrontation ¶ ordinarily 7 court reviews This by Clause as clarified the United States Su- admissibility of ruling trial on court’s preme Washington, v. 541 Court Crawford under an abuse of discretion stan evidence 1354, 36, 158 L.Ed.2d 177 124 S.Ct. 385, 387, 873 Ayala, v. 178 Ariz. dard. State (2004). responded State The 1307, (App.1994). P.2d 1309 We review relying on the results of blood tests light sustaining facts in the most favorable to personally that he were did not conduct of- Hyde, ruling. v. 186 trial court’s State pursuant fered to Rule 703 of the Arizona (1996). 252, 265, 655, Ariz. 921 P.2d We Rules of and did violate the not deferentially the trial court’s factual review Confrontation because the blood test Clause independently findings and we review results were neither nor “testimoni- legal conclusions. State v. Gon court’s al” under Crawford. zalez-Gutierrez, P.2d Ariz. ¶ purposes trial court assumed for The (1996); Ellison, v. see also State Moss’s that the test were facts motion results (2006) 116, 129, 42, reasonably type or data aof (confirming challenges review re de novo experts Kelly’s particular in Dr. field in admissibility the Confronta garding under forming opinions on whether a driver was Clause); 212 Ariz. King, tion State v. drugs that Dr. the influence (App.2006) Kelly’s opinions ordinarily would be admissi- (same). Rule ble under 703 of the Arizona Rules of appeal, must we deter- 8 To resolve concluded, however, The Evidence. testimony of mine if the report stating that the the results of Moss’s constitutionally barred the Confronta- was tests “testimonial” under Crawford tion to show that Clause. The State seeks Washington. The court further reasoned drugs was under the influence of Moss “[although report is [laboratory] not drugs trial, presence time of the accident. going to be offered as exhibit key sup- Moss’s blood would evidence known contents of that will become porting the rea of recklessness for the jury through Kelly.” mens testimony aggravated endanger- assault and offenses The court found that such use 13-1201(A) (en- (2001) § right ment. See violate the to confronta- A.R.S. would (Supp.2006)3 § dangerment); inadmis- A.R.S. 13-1204 tion and therefore the results were applicable analy- 3. We cite the current version of 2. The record does not reveal whether same, purposes one sis of blood was crimi- Moss’s statute because it is issues, nalist than one. The written test or more as the version in effect the time these appeal. not of the record on In both the events. these primarily has trial court and plural designations such as "criminalists." used opinion. We suit in this will follow 13-1203(A) (2001) (aggravated ability A.R.S. be assessed in a manner: assault). Kelly’s proposed by testing in the crucible of cross-examina- convey judgment, test results to the tion. thus reflects a jury, and the likely test results would only desirability about the of reliable (a understood demonstrating point on which there could be presence dissent), methаmphetamine reliability Moss’s little but about how can bloodstream at the time of the accident. best be determined. 541 U.S. at S.Ct. 1354 9 In United States added).5 (emphasis right This constitutional Cranford, its issued landmark to cross-examine one’s accusers —based not

expanding right of an accused to confront judicial on rules of evidence or notions of his accusers. The Court held that the Con- reliability the of foundation our anal- frontation Clause bars “admission of testimo- —forms ysis in opinion. this nial statements of a who witness did not appear at trial unless he was unavailable to ¶ produce 11 The State cannot testify, and the had prior defendant had a actually performed criminalists who the tests opportunity for cross-examination.” Craw- on sample of Moss’s blood. Moss has not ford, 1354; S.Ct. U.S. U.S. had the opportunity ‍‌‌​​‌​​​​​​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‍to confront and cross- Const, (“[i]n prosecu- amend. VI all criminal examine these witnesses. must We deter tions, enjoy right the accused shall ... to if Kelly’s mine pro the test results and against confronted with the witnessеs posed testimony “testimonial” constitute him”).4 hearsay Crawford, thereby triggering right Moss’s to confront the absent wit Roberts, Ohio v. overruled Crawford begin nesses. We our consider 56, 2531, S.Ct. 65 L.Ed.2d 597 ing whether blood test results constitute (1980), had which held that an unavailable and, hearsay hearsay, even if whether Dr. may witness’s out-of-court statement be ad- testify may to the results under Ari long adequate as it mitted so had “indicia of zona Rule of Evidence 703. 66, reliability.” Id. at 100 S.Ct. 2531. The rejected judicial Court determinations of reli- supreme 12 Prior to our ability in fаvor of actual confrontation and court stated that the Confrontation Clause is cross-examination: inapplicable non-hearsay to evidence. State involved, Where testimonial statements are 38, 42, 794, Rogovich, 188 Ariz. 932 P.2d (1997). we do not think State, the Framers meant to citing Rogovich, con protection leave Sixth Amendment’s tends that results are not be evidence, vagaries of the rules of much they upon by cause are relied an amorphous less to of “reliability.” notions foundation his “аre for admissi Certainly none of the authorities purpose showing discussed ble for the limited of acknowledges any general reliability opinion, above of prove basis not to the truth exception 42, rule. of common-law Admit- the matter asserted.” Id. at 932 P.2d ting by judge “Testimony prove statements deemed at 798. reliable not admitted to fundamentally right with odds the truth of the matter an asserted out-of- of sure, To hearsay.” the Clause’s court is not Id. declarant Similar confrontation. goal reliability ly, Supreme ultimatе is to ensure Court in noted Crawford evidence, but procedural it is a rather than that the Confrontation “does not bar commands, guarantee. a substantive It pur the use of for testimonial statements reliable, not poses that evidence be but that truth of establishing reli- other than Const, (“[i]n indulge assumption. 4. See also Ariz. art. criminal have been content prosecutions right the accused shall have the ... They judges, government knew that like other face-to-face”). against to meet the witnesses him offiсers, always could not be trusted to safe- guard rights They people.... were explained: 5. The further Court judicial loath too to leave much discretion We have no doubt that the courts below were hands. acting good utmost when faith found added). (emphasis Id. 124 S.Ct. Framers, however, reliability. would not State, being not the test results are U.S. at 59 n. 124 to the matter asserted.” 541 truth, explain merely to their but offered for 5.Ct. 1354. Kelly’s opinions. basis Rule 703 of the Arizona 13 Under position, howev- disagree with the State’s We Evidence, exрert may testifying Rules er, pre-Crawford pronounce- based both underlying or data testify to the facts and on the Arizona ments of showing purpose the limited “of itself. Crawford prove opinion, of that not to the bases trial court found that 15 The truth asserted.”6 State v. matter convey testimony would Lundstrom, 161 Ariz. though the even actual (1989). In regard to facts or data relied Cognizant not be admitted. Rule upon by an witness under lurking” applications potential “dangers explained that supreme our court has “the suprеme Rule our has warned that right defendant’s confrontation extends admissibility “facts or relied on data” witness, testifying expert not to those absolute, subject expert is and is not findings testify but whose do by Arizona Rule of weighing required merely research the basis for wit form against value probative testimony.” Ariz. at Rogovich, 188 ness’s may from such prejudice the unfair that arise 798. 932 P.2d at Lundstrom, 161 Ariz. at 776 disclosure. principles, the State 14 Based these Also, 1074. the official Comment P.2d at asks us to reverse the court’s exclusion adoption аccompanying Rule 703 re- Kelly’s testimony regarding the blood to veals the rule was not intended au- that test and his based thereon. results or data that thorize the admission facts Perhaps recognizing that written applica- an pursuant to “should be excluded hearsay, constitutes the State does statute, provision, ble rule or constitutional report. not intend to offer the See State ex has also supreme decision.”7 Our court em- Johnson, McDougall Ariz. rel. 181 expert “merely if acts as a phasized that (App.1994) (holding 876 891 expert’s non-testifying for another conduit laboratory’s that private breath test hearsay opinion, ‘expert opinion’ and is is showing alcohol concentration constituted inadmissible, notwithstanding.” Rule Instead, hearsay). the State contends that Lundstrom, at 776 P.2d at Ariz. Kelly may Rogovich and Rule 1074; Rogovich, 188 Ariz. at n. see also may explain testify to the test results 932 P.2d at 798 n. 1. in support reliance on the results of his ex- merely acting is pert impaired by expert an as opinion that Moss was 16 Whether non-testifying expert’s drugs According a for at the time of the accident. conduit another question provides: rule. 6. R. Evid. both sentences of the type data a reason- whether the facts or are of particular upon or in the case The facts data upon by experts expert opinion ably a an or inference relied is in all instances which an bases by may perceived by those question be or made known to of law to be resolved expert hearing. If before the of a prior evidence. If the to admission upon type reasonably by experts relied in the this and form the facts or data meet standard particular forming opinions or field in infer- opinion they be- basis of admissible upon subject, data the facts or need ences this for the limited come admissible under rule in evidence. not be admissible disclosing purpose basis for pursuant be excluded to an unless should provides perti- Rule 703 in 7. The Comment to statute, provision, applicable rule constitutional рart: nent or decision. rule, article, along with others in this is This added); (emphasis Evid. cmt. see Ariz. R. reception designed expedite Wigmore: Kaye H. et New also David testimony. urged al.. in its use. Partic- Caution 3.7.1, ("The Expert (Supp.2007) at 34 Advisory attention is called Com- ular Arizona, accompanying Rule for comment Note Federal Rules of Evidence mittee’s accompanies interprets example, 703. ad- rule of admis- Federal Rule In Rule 703 as a which dition, emphasized that the stan- it should be sibility basis evidence but still rеstricts disclo- type reasonably evidence”). of a relied dard "if constitutionally prohibited sure of applicable ‍‌‌​​‌​​​​​​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‍experts in the field" is necessarily fact-specific inquiry. only Rule 403 eliminate concerns—-if because case, In acknowledged doubts, that it least, one must have serious about “testify intended to offer jurors ability such to follow an instruc- actually performed lieu tion.”) of those who added). (emphasis Therefore, analysis.” chemical to the extent Kelly’s testimony that Dr. simply wоuld act The trial court had discretion to analysis per- as conduit the blood test determine under these facts that the test criminalists, formed the absent his testi- likely results would be considered mony consist of hearsay, inadmissible jury non-testifying as conclusions of the notwithstanding. Rule 703 id. analysis, criminalists who thereby potentially triggering Moss’s con Additionally, must courts consider the If impact rights. proposed frontation out-of-court on the jury. probably See Ariz. R. Evid. As the statements will be considered likeli- jury jury hood increases will cоnsider the for the truth of the matters stated therein, evidence for its truth than rather for the the evidence should considered offered, purpose being limited for which it is equivalent the functional for Con protected by the core concerns the Confron- purposes though frontation Clause even it tation must be scrutinized more care- might traditionally be considered facts or fully. jury required When will upon by data under Rule consider whether the defendant was under 703. See drugs influence of at the time of an (“Accordingly, again S.Ct. 1354 we once re event, likely depend it will on ject the view that the Confrontation Clause for their truth. The applies only of its own force to in-court testi may persua- blood test results be the most mony, application and that its to out-of-court sive that drugs Moss had in his depends upon statements introduced at trial system. Kelly only if Dr. Even relied in being.’ ‘the law of Evidence time for the part on Leaving regulation of out-of-court state impaired drugs, that Moss was we believe ments law of evidеnce would render it prevent jury would be difficult to from powerless pre the Confrontation to Clause considering key the blood test results as inquisitorial vent flagrant even the most impairment, evidence of Moss’s even assum- (citations omitted); practices.”) Reyes, 18 ing limiting given. a instruction is See U.S. (explaining F.3d at 69 that “when the likeli (2d 65, Cir.1994) Reyes, v. F.3d 18 71-72 sufficiently high hood is that the will not (although ordinarily jurors courts assume limiting [to follow the instructions avoid con instructions, limiting will if follow an out-of- sideration of out-of-court declarations аs probative declaration has no value oth- proof said], of the truth of what was but will truth, er than for its an instruction that the proof treat the evidence as of the truth of the jurors not use should the declaration for its declaration, functionally the evidence is indis followed); unlikely truth is to be see also 1 tinguishable hearsay”).8 from al., Joseph M. Livermore et Arizona Practice ¶ (4th reasons, 105.1, § Law 19 For these conclude that of Evidence at 28 ed. we 2000) (“The limiting proposed testimony giving of a contains instruction significant automatically hearsay under Rule 105 should and the func- not elements al., hearsay); Kaye 8. We note that some was et The authorities concluded New 3.10.1, ("The light Wigmore: Expert in that data at 40 facts or offered to Crawford explain expert’s factually implausible, the basis an should be formalist claim that ex- hearsay though perts’ being only considered even evidence is basis introduced not, sense, prove help expert’s in a traditional offered to in the evaluation of the conclusions ought People permit truth of stated but truth an end-run the matters therein. v. not for its not Goldstein, 119, 100, prohibition."). 6 N.Y.3d 810 N.Y.S.2d 843 around a constitutional While 727, (2005) supportive (explaining principles N.E.2d are of the result we 732-33 that the these “distinction between a offered for reach in we do not base our decision statement its light pre- with truth and a statement offered to shed on an on them because are inconsistent expert’s meaningful Supreme opinion is not in this con- of the Arizona statements Crawford holding tеxt” that the evidence Court.

391 Crawford, triggering protections hearsay equivalent tional for Confronta- The court was Confrontation Clause. purposes. tion Clause applying Confrontation therefore correct supported by 22 conclusion several Our analysis testimony. Clause jurisdictions. from recent decisions other question Kelly’s next whether 4, See, State, v. 929 7 e.g., Johnson So.2d testimony regarding the blood test results (holding that lab re (Fla.Dist.Ct.App.2005) thereon would be and his illegal port establishing nature substanсe “testimonial” under Crawford. hear possessed defendant was testimonial 899, Walsh, say); Vegas Las v. Nev. In Court held (2005) 203, (holding that P.3d 207-08 nurse’s hearsay statements that “testimonial” regarding sam affidavit withdrawal blood declarant would be admitted unavailable ple case is for chemical DUI a criminal trial unless defendant had testimonial); 888, People Rogers, v. 8 A.D.3d cross-examined declarant. See (N.Y.App.Div.2004) N.Y.S.2d Although 1354. Su- S.Ct. (holding that testimoni was preme provide compre- Court declined to App.3d hearsay); Crager, al v. 164 Ohio categories list of the of statements hensive ¶¶ (2005) 390, 394-400, N.E.2d 19-51 “testimonial,” explained are the Court (review 2006) (holding that granted Apr. applies Confrontation hear analyst’s report DNA testimonial was against who “bear “witnesses” the accused analyst say was not entitled to and second testimony.” Id. S.Ct. conclusions); report’s testify to but see State “testimony” a “solemn described Dedman, 561, 102 136 N.M. pur- or affirmation made for the declaration (2004) (holding that blood alcohol pose establishing proving or fact.” somе was because it was not testimonial Webster, (quoting Id. Noah An American routine, prepared in non-adversarial manner (2d Dictionary English Language ed. prior testimony po did not resemble 1828)). “An accuser who a formal makes interrogation). lice government statement officers bears testi- mony person in a sense that a makes persuaded Nor that Dr. are we remark an acquaintance casual does not.” testimony regarding the results of blood Id. The Court also a “core identified clаss” non-testifying criminal tests statements, including of testimonial “ex any exception to ists would fall within the parte testimony in-court or its functional requirements of the Confrontation Clause “affidavits, equivalent” such as custodial ex- might simply because the written aminations, prior testimony,” and “simi- Supreme [or] qualify as a business record. The pretrial lar statements that declarants would suggested in in that dicta Crawford reasonably expect prosecutorial- used be are See business records non-testimonial. ly.” Id. 1354. U.S. S.Ct. Cоurts particular differed on whether lab

thereafter ¶21 proposed oratory reports non- conclude that the should be considered We testimony Kelly reporting simply are business Moss’s testimonial because public Compare test constitute testimoni or records. Bohsancurt v. blood results would ¶¶ 182, 189-91, 25-35, meaning Eisenberg, al the 212 Ariz. evidence within of Cranford. (holding (App.2006) the 129 P.3d 478-80 that The criminalists blood surely and records interpreted quality and the results ex assurance calibration tests breath-testing pected device non-testimonial their statements of the results be were subject to primary That was records not the Confron prosecutorially. used business Clause) Verde, analyzing blood. The testimo tation and Commonwealth reason (2005) ny reporting 827 N.E.2d 705-06 by Kelly Dr. the results would Mass. laboratory be, essence, (holding the absent that in an accusation public or rec ingested metham cocaine fell within business criminalists that Moss had Therefore, exception Clause phetamine ords Confrontation before аccident. under Massachusetts law testimonial well established evidence is tion, Crawford) and Crager, noted in with supra see and data facts relied ¶¶ 397-98, (declining N.E.2d at 33-41 upon by experts may subject challenge, adopt exempting a broad rule business rec basis, case-by-case on a Confronta- rights). ords from Confrontation Clause As tion Clause.9 however, emphasized, applica Crawford tion of the is not Confrontation Clause con III. trolled state evidence law. 541 U.S. at Here, key ques rights 124 S.Ct. 1354. 26 Confrontаtion are not vio proffered testimony tion is lated whether when the out-of-court declarant testifies regarding subject results would be trial and is to cross-examination. 9,124 agree testimonial under We with 59 n. S.Ct. 1354. Crawford. yes. however, supra Here, trial court: the answer is See the criminalists who tested ¶¶ 18-22. drug content Moss’s were un testify available to at trial and would not be argues also The State the labora- subject to cross-examination. On this rec tory analysis ‍‌‌​​‌​​​​​​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‍of Moss’s blood was “neither ord, the trial court did its not аbuse discre opinion” discretionary nor based on and on tion its factual determinations and did not however, contains no evidence ad- legal err in its conclusions. We therefore dressing actual testing methodology, its affirm precluding the order foundation, background scientific Kelly regarding results criminalists, qualifications of the and his based thereon. expertise subjective judgment amount of process. involved in the Based on this

sparse light Crawford, and in record we do A. CONCURRING: PATRICIA argument not find this of the State OROZCO, Judgе. to be persuasive. KESSLER, Judge, specially concurring. ¶25 protection of the Confrontation result, concur here, but necessar may, predominate over Rule ily reasoning, majority. I would admissibility facts or data relied on not reach constitutional expert. issue because Dr. admissibility of such facts or Kelly’s testimony, to it historically judicial data the extent is based has been on a the lab inadmissible type determination the evidence is “of a as a reasonably upon by experts non-testifying “conduit another ex Lundstrom, pert’s opinion”. field” and reliable. State v. therefore (1989). 1067, 1074 Ariz. R. Evid. Because the In case, rejected judicially-deter- Court in preserve the State did not Crawford reliability in mined favor of actual eonfronta- record of contents of lab experts suggesting may people police 9. We are not no to the about the defendant’s be- longer rely hearsay. havior; or, facts on or data that are arising in a criminal case from a key question now in Confrontation Clause accident, vehicular an accident reconstruction analysis is whether the evidence is tes- expert partly might base his on affida- leading timonial. As authors of one vits made witnesses to the authorities. The explain: treatise expert gang situation is similar when a relies Often, expert’s basis for testi- by suspects on statements made under interro- mony any will testimonial under reason- gation, or when one scientist relies on forensic able definition the term. When a doctor another, laboratory results of or when a relies on other medical records made in the forensic medical or written someone treatment, appraiser course of or an relies on testifying other than witness introduced sales, comparable gang or an struc- evidence, when, statute, pursuant into ture on relies interviews conducted with for- (such breathalyzer information as a gang many years mer members over and not composition drug) of a or an case, plausible related no un- аny introduced without witness at all. In such derstanding encompass "testimonial” cases, could the Confrontation Clause bar dis- However, these statements. there will be evidence. closure of this part expert’s times when of an basis is testimo- al., Kaye Expert Wigmore: psychiatrist’s et The New sanity nial. A about 3.10, depend part could on statements made at 38-39. superi- copy of results with the filing a those assume We must therefore

or court. a non- lab results are extent, Dr. Kel- testifying expert and to that the results would

ly’s based on opinions. for those

merely be conduit Printz, (1980) (if appellant to ensure fails of record at issue

that evidence missing portions presume court ‍‌‌​​‌​​​​​​‌​‌‌‌‌‌‌‌‌​​​‌‌‌‌​‌‌​​‌‌​‌‌‌​‌‌‌‌​​​‌‍will the trial support the action of

of the record

court).

Case Details

Case Name: State v. Moss

Court Name: Court of Appeals of Arizona

Date Published: May 29, 2007

Citation: 160 P.3d 1143

Docket Number: 1 CA-CR 05-0306

Court Abbreviation: Ariz. Ct. App.