Appeal
from the District Court, Third Judicial District, Palmer,
Trial Court No. 3PA-15-00461 CR John W. Wolfe, Judge.
Josie
W. Garton, Assistant Public Defender (briefing), Renee
McFarland, Assistant Public Defender (oral argument), and
Quinlan Steiner, Public Defender, Anchorage, for the
Appellant.
Eric
A. Senta, Assistant Attorney General, Office of Special
Prosecutions, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats,
Senior Judge. [*]
OPINION
MANNHEIMER, JUDGE
This
appeal raises a question regarding the scope of a criminal
defendant's right of confrontation - a question that has
bedeviled the courts of this country since 2004, when the
United States Supreme Court re-interpreted the confrontation
clause of the federal constitution in Crawford v.
Washington.[1]
In
Crawford, the Supreme Court held that the federal
confrontation clause bars the government from introducing
"testimonial" hearsay against a criminal defendant
unless the defendant had an earlier adequate opportunity to
cross-examine the speaker. But Crawford, and the
Supreme Court decisions that have followed in the wake of
Crawford, still do not define how the
Crawford rule should be applied to situations where
an expert witness gives testimony that relies on laboratory
testing that was performed by someone else.
The
defendant in the present case, Earl Dean Robbins, was
arrested for driving under the influence after the police
responded to the scene of a motor vehicle accident and
discovered that Robbins (one of the drivers involved in the
accident) was visibly impaired.
Following
his arrest, Robbins submitted to a breath test, but this test
showed that Robbins had no alcohol in his system. The police
then obtained a sample of Robbins's blood, and this blood
sample was ultimately sent to the Washington State Toxicology
Laboratory for testing. This laboratory testing showed that
Robbins had several controlled substances in his system, in
amounts that would likely have impaired his driving.
At
Robbins's trial, the State presented these test results
through the testimony of Andrew Gingras, a forensic
toxicologist working at the Washington laboratory. Here is a
recapitulation of Gingras's testimony regarding the
testing of Robbins's blood, viewed in the light most
favorable to the trial court's ruling:
Robbins's
case was assigned to Gingras, but Gingras did not perform all
the testing himself. Gingras personally tested Robbins's
blood for Xanax (alprazolam). Gingras also performed the
preliminary test that detected Soma (carisoprodol) in
Robbins's blood. However, another analyst at the
laboratory, Lindsay Lowe, performed the follow-up testing
that determined the exact quantities of Soma (both the drug
itself, carisoprodol, and its metabolite, meprobamate).
After
Lowe completed her testing of Robbins's blood for Soma,
Gingras examined the resulting test data and reviewed it for
any abnormalities. Gingras testified that he found no
abnormalities and that, based on his review of Lowe's
test data, he would have reached the same conclusions as Lowe
about the levels of carisoprodol and meprobamate in
Robbins's blood. Accordingly, Gingras certified all the
test results on behalf of the Toxicology Laboratory - both
Gingras's own testing for Xanax, and Lowe's testing
for Soma.
On
appeal, Robbins argues that the confrontation clause barred
the State from presenting Gingras's testimony about the
results of the Soma testing. Robbins asserts that
Gingras's connection to the Soma testing was too
attenuated to pass muster under the confrontation clause -
that any testimony about those test results could only be
given by the analyst who personally performed the tests, and
that Gingras was an improper hearsay conduit for that
testimony.
Why
we conclude that Gingras 's testimony about the Soma test
results did not violate the confrontation clause
Our
analysis of Robbins's case hinges on three court
decisions: the United States Supreme Court's decisions in
Melendez-Diaz v. Massachusetts (2009),
[2] and
Bullcoming v. New Mexico (2011), [3] and this
Court's decision in Vann v. State
(2010).[4]
Melendez-Diaz
was the first time that the Supreme Court applied the
Crawford confrontation rule to a criminal case that
turned on the results of laboratory testing. The defendant in
Melendez-Diaz was charged with unlawfully
distributing cocaine. To prove that the substance in the
defendant's possession was cocaine, the government did
not produce any live witness, but instead relied solely on
affidavits prepared by the state crime laboratory. These
affidavits declared that the laboratory had tested the
substance, and that the substance was cocaine.[5]
The
Supreme Court held that these affidavits were
"testimonial hearsay", that the introduction of
these affidavits against the defendant violated the
confrontation clause, and that the government was required to
produce a live witness to testify about the results of the
laboratory testing.[6] At the same time, however, the Court
declared that the confrontation clause did not
require live testimony from everyone involved in the testing
process:
Contrary to the dissent's suggestion, ... we 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.
Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. at
2532 n. 1 (emphasis added).
One
year after the Supreme Court issued its decision in
Melendez-Diaz, this Court issued our decision in
Vann v. State. The defendant in Vann was
charged with sexual assault, and the central issue litigated
at trial was the identity of the assailant: Vann claimed that
he had never met the victim, and that he was elsewhere on the
night of the crime.[7]
To
prove that Vann was the one who sexually assaulted the
victim, the State presented the testimony of Cheryl Duda, a
forensic analyst employed by the Alaska State Crime
Laboratory. Duda testified that the laboratory received and
tested five genetic samples taken from Vann, from the crime
victim, and from physical objects associated with the crime.
Duda described how the laboratory tested the samples for DNA,
and she also described the method for comparing the DNA
profiles obtained from this testing. Based on the results of
this testing and comparison, Duda asserted that Vann could
not be excluded as the source of DNA found in the samples
retrieved from the victim.[8]
The
confrontation issue in Vann arose from the fact that
Duda had personally tested only three of the five genetic
samples. The other two samples were tested by another DNA
analyst in the Crime Laboratory, and this analyst did not
testify at Vann's trial.[9]
However,
Duda testified that, after the other analyst tested the two
genetic samples, Duda independently re-evaluated the other
analyst's conclusions. Specifically, Duda testified that
she examined the other analyst's "bench notes"
to make sure that she followed proper testing protocols, and
then Duda took the machine print-outs from the other
analyst's testing and independently conducted her own DNA
comparison analysis. Based on this analysis, Duda stated that
she reached ...