State v. Griep

• Citation: 863 N.W.2d 567,361 Wis.2d 657
• Decision Date: 23 April 2015
• Docket Number: No. 2009AP3073–CR.,2009AP3073–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Michael R. GRIEP, Defendant–Appellant–Petitioner.
• Court: United States State Supreme Court of Wisconsin

361 Wis.2d 657

863 N.W.2d 567

STATE of Wisconsin, Plaintiff–Respondent

v.Michael R. GRIEP, Defendant–Appellant–Petitioner.

No. 2009AP3073–CR.

Supreme Court of Wisconsin.

Argued Nov. 12, 2014.

Decided April 23, 2015.

For the defendant-appellant-petitioner, the cause was argued by Tricia J. Bushnell, Kansas City, MO. The briefs were filed by Tricia J. Bushnell.

For the plaintiff-respondent, the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Keith Findley on behalf of The Innocence Network, Madison.

An amicus curiae brief was filed by Kelli S. Thompson, state public defender, and Jefren E. Olson, assistant state public defender, on behalf of the Office of the State Public Defender.

Opinion

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review a decision of the court of appeals¹ that affirmed the circuit court's² ruling that admitted an expert witness's testimony that established the blood alcohol concentration (BAC) of Michael R. Griep while he was operating his vehicle. The expert witness, Patrick Harding, based his opinion in part on forensic tests conducted by an analyst at the Wisconsin State Laboratory of Hygiene (Wisconsin State Laboratory) who was unavailable for trial. Based on Harding's testimony, Griep was convicted of operating a motor vehicle while intoxicated (third offense).

¶ 2 Griep appealed, contending that his right of confrontation was violated when the circuit court allowed Harding to rely in part on the analyst's forensic test results. The court of appeals affirmed, concluding that Griep's right of confrontation was not violated because Harding reviewed the analyst's forensic test results and other records and formed an independent opinion of Griep's BAC, as approved in State v. Williams,³ 2002 WI 58, 253 Wis.2d 99, 644 N.W.2d 919 and State v. Barton, 2006 WI App 18, 289 Wis.2d 206, 709 N.W.2d 93. State v. Griep, 2014 WI App 25, ¶¶ 19, 22, 353 Wis.2d 252, 845 N.W.2d 24.

¶ 3 We conclude that Harding's review of Griep's laboratory file, including the forensic test results of an analyst who was unavailable for trial, to form an independent opinion to which he testified did not violate Griep's right of confrontation. Williams, 253 Wis.2d 99, ¶ 26, 644 N.W.2d 919 ; Barton, 289 Wis.2d 206, ¶ 20, 709 N.W.2d 93. Accordingly, we affirm the court of appeals decision that affirmed the circuit court's admission of Harding's testimony.

I. BACKGROUND

¶ 4 This review involves Griep's claimed violation of his right of confrontation regarding Harding's expert testimony that was based in part on results of forensic tests conducted by an analyst who was unavailable for trial. The historic facts are not in dispute.

¶ 5 On Saturday, August 25, 2007, at approximately 12:48 a.m., a Winneconne Police Department officer stopped Griep for speeding, for which he planned to issue a warning ticket. However, while talking with Griep, the officer smelled the odor of alcohol and observed Griep's bloodshot and glassy eyes.

¶ 6 In response to the officer's question about alcohol consumption, Griep stated that he drank a couple of beers at a local bar. When the officer asked Griep to perform field sobriety tests, Griep agreed. Griep's performance on the field sobriety tests indicated that he was intoxicated. After further discussion, Griep admitted he had four beers. Griep agreed to perform a preliminary breath test that also indicated intoxication. The officer reviewed Griep's record, which showed two prior convictions for OWI. The officer transported Griep to a nearby hospital for a blood draw. At the officer's request, hospital staff conducted the blood draw without Griep's consent.⁴

¶ 7 The officer observed a phlebotomist draw Griep's blood and place it in closed vials. The blood kit was properly sealed. The blood kit was secured at the Winneconne Police Department before it was mailed to the Wisconsin State Laboratory.

¶ 8 Wisconsin State Laboratory analyst Diane Kalscheur received and analyzed Griep's blood sample. Kalscheur authored a concise report stating: (1) she received Griep's labeled and sealed blood sample, and (2) Griep's blood was tested for ethanol and that testing revealed a certain ethanol concentration. Thomas Ecker, an Advanced Chemist at the laboratory, conducted a peer review of Kalscheur's report and signed the laboratory report under the statement “As designee of the Director, I do hereby certify this document to be a true and correct report of the findings of the Wisconsin State Laboratory of Hygiene.”

¶ 9 At Griep's trial for third-offense OWI, the phlebotomist testified about instructions for collecting blood, using the kit provided by a police officer, and her role in inspecting the blood kit before its use.

¶ 10 Kalscheur was unavailable at the time of trial.⁵ Instead, the State called Patrick Harding, section chief of the toxicology section of the Wisconsin State Laboratory, as an expert witness. Harding testified that he had reviewed Kalscheur's work and examined the data produced by Kalscheur's testing, specifically the chromatograms, as well as other records associated with the tests Kalscheur performed. Harding said that he was familiar with the process of obtaining blood samples for ethanol testing, shipping them to the laboratory, processing them for analysis, and the analysis of the samples.

¶ 11 When the State asked Harding's opinion on whether Kalscheur tested Griep's blood sample consistently with laboratory procedures, defense counsel objected on Confrontation Clause grounds. Harding testified that all indications were that Kalscheur followed the laboratory procedures and that the instrument was working properly. Harding said that the machine's proper function was evident from the results of calibration checks run throughout the course of the tests of Griep's samples. Harding concluded that the results of those calibration checks, in particular those Kalscheur ran immediately before and after the Griep samples, showed the reliability of the machine's results. Harding opined that correctly running the sample through the calibrated instrument resulted in a reliable blood alcohol reading. Harding concluded that after reviewing all of the available data, he came to an independent opinion that the alcohol concentration in Griep's blood was 0.152 grams of ethanol per 100 milliliters of blood. Harding also testified as to laboratory procedures and that if there had been irregularities with the sample, they would have been noted on a form by the analyst. None were noted.

¶ 12 During cross-examination, Harding acknowledged that an analyst could commit misdeeds, possibly without detection. Harding also acknowledged that it is important that the analyst be competent and honest. Harding testified that when he testifies about forensic tests that he has personally completed, he relies on the paperwork and notes he completed at the time of testing because analysts at the laboratory conduct so many tests that no one can remember details about each particular sample without reviewing the notes that were made contemporaneously with the tests.

¶ 13 Griep's motion in limine and objection at trial that sought to preclude Harding's testimony were grounded in the Confrontation Clause. He relied on Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ; and their relationship to Williams and Barton. The circuit court considered the Confrontation Clause issue after conclusion of the presentation of evidence at the bench trial. The circuit court denied Griep's motion; heard closing arguments; adjudged Griep guilty; convicted and sentenced him.

¶ 14 Griep appealed. Before the court of appeals issued its decision, the United States Supreme Court accepted a petition in State v. Bullcoming, 147 N.M. 487, 226 P.3d 1 (2010). See Bullcoming v. New Mexico, 561 U.S. 1058, 131 S.Ct. 62, 177 L.Ed.2d 1152 (2010) (granting certiorari). The court of appeals held Griep's case in abeyance pending the outcome in Bullcoming because the question presented in that case⁶ was similar to the question in Griep's appeal.

¶ 15 As the court of appeals was again about to undertake Griep's appeal, the court learned that the United States Supreme Court had granted certiorari in another relevant case, People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268 (2010). See Williams v. Illinois, –––U.S. ––––, 131 S.Ct. 3090, 180 L.Ed.2d 911 (2011) (granting certiorari). The court of appeals once again held Griep's case to await the outcome in Williams v. Illinois because the decision on the question presented⁷ may have had an effect on Griep's appeal.

¶ 16 On May 15, 2013, the court of appeals certified the appeal to us.⁸ On June 14, 2013, we held the certification in abeyance pending our disposition of State v. Deadwiller. See State v. Deadwiller, 2013 WI 75, 350 Wis.2d 138, 834 N.W.2d 362 (2013). On November 20, 2013, we refused certification. The court of appeals issued its opinion February 19, 2014, and held that Barton remained good law. Griep, 353 Wis.2d 252, ¶ 22, 845 N.W.2d 24. The court held that “the availability of a well qualified expert, testifying as to his independent conclusion about the ethanol testing of Griep's blood as evidenced by a report from another state lab analyst, was sufficient to protect Griep's right to confrontation.” Id.

II. DISCUSSION

A. Standard of Review

¶ 17 We review whether Harding's testimony, particularly his reliance on testing conducted by Kalscheur, violated Griep's right of confrontation. While “a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right of confrontation is a question of law subject to independent appellate review.” Deadwiller, 350 Wis.2d 138, ¶ 17, 834 N.W.2d 362 (quoting Williams, ...