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Robbins v. State

Court of Appeals of Alaska

August 23, 2019


          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. [*]



         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 ...

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