Grim v. Fisher, 15–60720.

• Decision Date: 08 March 2016
• Docket Number: No. 15–60720.,15–60720.
• Citation: 816 F.3d 296
• Parties: Frederick Denell GRIM, Petitioner–Appellee, v. Marshall L. FISHER, Commissioner, Mississippi Department of Corrections; Timothy Outlaw, Warden, Marshall County Correctional Facility, Respondents–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

816 F.3d 296

Frederick Denell GRIM, Petitioner–Appellee,
v.
Marshall L. FISHER, Commissioner, Mississippi Department of Corrections; Timothy Outlaw, Warden, Marshall County Correctional Facility, Respondents–Appellants.

No. 15–60720.

United States Court of Appeals, Fifth Circuit.

March 8, 2016.

816 F.3d 298

Jacob Wayne Howard, Esq. (argued), Robert Bruce McDuff, Esq., Jackson, MS, for Petitioner–Appellee.

Lesley G. Miller, Special Assistant Attorney General (argued), Office of the Attorney General Jackson, MS, for Respondent–Appellant.

Before JONESand SMITH, Circuit Judges, and FITZWATER^* , District Judge.

FITZWATER, District Judge:

This appeal from a judgment granting habeas relief based on the Sixth Amendment Confrontation Clause turns on whether, as the district court held, the Supreme Court's decision in Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), clearly establishes as federal law that, when the prosecution introduces a forensic laboratory report in evidence, the criminal defendant has a right to confront the analyst who performed the underlying analyses.¹ The question presented in this case is whether Bullcoming clearly establishes that the prosecution cannot introduce a forensic laboratory report containing a testimonial certification of an analyst—made for the purpose of proving a particular fact—through the testimony of a technical reviewer who verified the analyst's findings,

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agreed with a reasonable degree of scientific certainty with the analyst's examinations and the results of the analyst's report, and signed the certification. Because we hold that Bullcoming does not clearly establish this as federal law, we reverse the district court's judgment and render judgment denying habeas relief.

I

Petitioner-appellee Frederick Denell Grim ("Grim") was convicted in Mississippi circuit court of the offense of sale of cocaine as a habitual and second and subsequent offender and sentenced to life imprisonment without parole. The trial judge permitted Erik Frazure ("Frazure"), a forensic scientist with the Mississippi Crime Laboratory who specialized in drug analysis or controlled substance analysis, to testify over Grim's objection that the substance in question was cocaine base.² Frazure was a technical reviewer who had neither observed nor participated in the testing of the substance. Gary Fernandez ("Fernandez"), the analyst who performed the testing and generated the report concluding that the substance was cocaine base, did not testify. See Grim v. State, 102 So.3d 1073, 1075, 1077 (Miss.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 2856, 186 L.Ed.2d 914 (2013).

At trial, Frazure briefly described his education, background, and experience working in the Mississippi Crime Laboratory, he explained the process followed when an item is received for forensic examination, and he testified concerning the procedures followed by the analyst assigned to the case. According to Frazure, after the analyst performs examinations on an item of evidence to determine whether it contains a controlled substance, the analyst prepares a report containing his conclusions. The report is given to a technical reviewer like Frazure, who looks at the report and all of the data, including everything the analyst did to the item of evidence. The technical reviewer ensures that the analyst did proper examinations, that the analyst's interpretation of the results of the examinations is correct, that the conclusion of the analyst from the collective examinations is correct, and that the conclusion is conveyed in an understandable manner in the report. The purpose of having a technical reviewer is part of the quality assurance and quality control methods within the crime laboratory and ensures that the laboratory is doing quality work or correct work each and every time.

After offering Frazure's foundational testimony, the State sought to introduce in evidence the crime lab report containing Fernandez's signature and Frazure's signature and initials, and the item of evidence alleged to be cocaine. When the State attempted to introduce Frazure's testimony concerning the tests performed, Grim objected on confrontation grounds, contending that he was entitled to have the person who actually analyzed the drugs present for questioning, and that Frazure was merely a technical reviewer who went through the process of quality assurance but did not do the analysis. In a hearing outside the jury's presence, Frazure testified that he did not physically analyze the item of evidence; instead, Fernandez completed his examinations using a gas chromatograph and mass spectrometer and generated a work packet containing the results. Frazure then reviewed the work packet to ensure that Fernandez had done

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the proper tests for this type of evidence. Frazure testified:

I took that work packet and I reviewed the work packet to ensure that he did the proper tests, which was in this case a color test and a [gas chromatograph, mass spectrometer], ensured that those were both proper tests for this type of evidence, and I looked to see the results that he had and made sure the results from those two examinations did coincide with the results that he—or the conclusion that he formed, and I made sure that that—the conclusion that he formed with his report was correct[ ] with the conclusion that was in his work packet.

In response to questions from the trial judge, Frazure confirmed that he had reviewed the results of Fernandez's tests and signed off on them. The trial judge then concluded that Frazure had enough dealings with the technical review of the cocaine to be allowed to testify.

After the trial judge made this ruling, the State offered Frazure's testimony that he was the technical reviewer in the case; he reviewed the work packet and report that Fernandez had generated; the work packet contained all the examinations that were performed on the item of evidence and the results of any data generated for the particular tests; Frazure looked at the examinations to ensure that the proper ones were done; Frazure looked at the results to ensure that Fernandez had interpreted the results correctly; and Frazure looked to ensure that the results of the examinations coincided with the conclusion in the report, and that this was stated in a readable or understandable manner. Frazure then testified over Grim's objection that the item of evidence contained cocaine base, and that the amount submitted to the laboratory was 3.2 grams.

On cross-examination, Grim's counsel established that Fernandez had actually done the testing of the item of evidence and determined that it was cocaine; Fernandez was the case analyst; although Frazure was likely present within the laboratory when the testing was done, he did not actually test the evidence in question or observe the testing; Frazure checked the results of all of Fernandez's examinations but did not do any firsthand scientific analysis of the item; and he basically analyzed the paperwork to ensure that Fernandez had followed the proper procedure to obtain the result. Frazure also testified that Fernandez did proper examinations on the item of evidence, and that Frazure could look at the data generated from the examinations, and "with a reasonable degree of scientific certainty I agree with his examinations and the results of his—or the results of the report." On redirect examination, Frazure testified that, after going over the work that Fernandez had done, Frazure had no doubts based on the paperwork that the item in question was cocaine.

The jury convicted Grim, and his conviction and sentence were affirmed on appeal. Grim v. State, 102 So.3d 1123 (Miss.Ct.App.2010), aff'd, 102 So.3d 1073 (Miss.2012). The Supreme Court of the United States denied Grim's petition for a writ of certiorari.Grim v. State, ––– U.S. ––––, 133 S.Ct. 2856, 186 L.Ed.2d 914 (2013).

While Grim's petition for a writ of certiorari to the Supreme Court of Mississippi was pending, the Supreme Court of the United States decided Bullcoming. Grim filed a supplemental brief in which he argued, in pertinent part, that, under Mississippi case law and Bullcoming, his right of confrontation was violated when the State was permitted to present a technical reviewer to testify regarding tests that the witness had not performed and for which

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the witness had not been present when the tests were performed.

The Supreme Court of Mississippi granted Grim's petition for a writ of certiorari "to examine whether the trial court erred by allowing a laboratory supervisor, who neither observed nor participated in the testing of the substance, to testify in place of the analyst who had performed the testing." Grim, 102 So.3d at 1075. After discussing federal and Mississippi Confrontation Clause jurisprudence, including Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), Bullcoming, and one of its own decisions, Conners v. State, 92 So.3d 676 (Miss.2012), the court concluded that "[n]one of these cases stands for the proposition that, in every case, the only person permitted to testify is the primary analyst who performed the...