Bullcoming v. New Mexico

Decision Date23 June 2011
Docket NumberNo. 09–10876.,09–10876.
Parties Donald BULLCOMING, Petitioner, v. NEW MEXICO.
CourtU.S. Supreme Court

Jeffrey L. Fisher, appointed by this Court, Stanford, CA, for Petitioner.

Gary K. King, Attorney General, for Respondent.

Susan Roth, Santa Fe, NM, Amy Howe, Kevin K. Russell, Goldstein, Howe & Russell, P.C., Bethesda, MD, Jeffrey L. Fisher, Pamela S. Karlan, Stanford, CA, for Petitioner.

Gary K. King, Attorney General of New Mexico, Ann Marie Harvey, Assistant Attorney General, James W. Grayson, Assistant Attorney General, M. Victoria Wilson, Albuquerque, NM, for Respondent.

Justice GINSBURG delivered the opinion of the Court, except as to Part IV and footnote 6.*

In Melendez–Diaz v. Massachusetts, 557 U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), this Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment's Confrontation Clause. The report had been created specifically to serve as evidence in a criminal proceeding. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.

In the case before us, petitioner Donald Bullcoming was arrested on charges of driving while intoxicated (DWI). Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was "testimonial," the Confrontation Clause did not require the certifying analyst's in-court testimony. Instead, New Mexico's high court held, live testimony of another analyst satisfied the constitutional requirements.

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

I
A

In August 2005, a vehicle driven by petitioner Donald Bullcoming rear-ended a pick-up truck at an intersection in Farmington, New Mexico. When the truckdriver exited his vehicle and approached Bullcoming to exchange insurance information, he noticed that Bullcoming's eyes were bloodshot. Smelling alcohol on Bullcoming's breath, the truckdriver told his wife to call the police. Bullcoming left the scene before the police arrived, but was soon apprehended by an officer who observed his performance of field sobriety tests. Upon failing the tests, Bullcoming was arrested for driving a vehicle while "under the influence of intoxicating liquor" (DWI), in violation of N.M. Stat. Ann. § 66–8–102 (2004).

Because Bullcoming refused to take a breath test, the police obtained a warrant authorizing a blood-alcohol analysis. Pursuant to the warrant, a sample of Bullcoming's blood was drawn at a local hospital. To determine Bullcoming's blood-alcohol concentration (BAC), the police sent the sample to the New Mexico Department of Health, Scientific Laboratory Division (SLD). In a standard SLD form titled "Report of Blood Alcohol Analysis," participants in the testing were identified, and the forensic analyst certified his finding. App. 62.

SLD's report contained in the top block "information ... filled in by [the] arresting officer." Ibid. (capitalization omitted). This information included the "reason [the] suspect [was] stopped" (the officer checked "Accident"), and the date ("8.14.05") and time ("18:25 PM") the blood sample was drawn. Ibid. (capitalization omitted). The arresting officer also affirmed that he had arrested Bullcoming and witnessed the blood draw. Ibid. The next two blocks contained certifications by the nurse who drew Bullcoming's blood and the SLD intake employee who received the blood sample sent to the laboratory. Ibid.

Following these segments, the report presented the "certificate of analyst," ibid. (capitalization omitted), completed and signed by Curtis Caylor, the SLD forensic analyst assigned to test Bullcoming's blood sample. Id., at 62, 64–65. Caylor recorded that the BAC in Bullcoming's sample was 0.21 grams per hundred milliliters, an inordinately high level. Id., at 62. Caylor also affirmed that "[t]he seal of th[e] sample was received intact and broken in the laboratory," that "the statements in [the analyst's block of the report] are correct," and that he had "followed the procedures set out on the reverse of th[e] report." Ibid. Those "procedures" instructed analysts, inter alia, to "retai[n] the sample container and the raw data from the analysis," and to "not[e] any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis." Id., at 65. Finally, in a block headed "certificate of reviewer," the SLD examiner who reviewed Caylor's analysis certified that Caylor was qualified to conduct the BAC test, and that the "established procedure" for handling and analyzing Bullcoming's sample "ha[d] been followed." Id., at 62 (capitalization omitted).

SLD analysts use gas chromatograph machines to determine BAC levels. Operation of the machines requires specialized knowledge and training. Several steps are involved in the gas chromatograph process, and human error can occur at each step.1

Caylor's report that Bullcoming's BAC was 0.21 supported a prosecution for aggravated DWI, the threshold for which is a BAC of 0.16 grams per hundred milliliters, § 66–8–102(D)(1). The State accordingly charged Bullcoming with this more serious crime.

B

The case was tried to a jury in November 2005, after our decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but before Melendez–Diaz . On the day of trial, the State announced that it would not be calling SLD analyst Curtis Caylor as a witness because he had "very recently [been] put on unpaid leave" for a reason not revealed. 2010–NMSC–007, ¶ 8, 147 N.M. 487, 226 P.3d 1, 6 (internal quotation marks omitted); App. 58. A startled defense counsel objected. The prosecution, she complained, had never disclosed, until trial commenced, that the witness "out there ... [was] not the analyst [of Bullcoming's sample]." Id., at 46. Counsel stated that, "had [she] known that the analyst [who tested Bullcoming's blood] was not available," her opening, indeed, her entire defense "may very well have been dramatically different." Id., at 47. The State, however, proposed to introduce Caylor's finding as a "business record" during the testimony of Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor's analysis. Id., at 44.

Bullcoming's counsel opposed the State's proposal. Id., at 44–45. Without Caylor's testimony, defense counsel maintained, introduction of the analyst's finding would violate Bullcoming's Sixth Amendment right "to be confronted with the witnesses against him." Ibid .2 The trial court overruled the objection, id., at 46–47, and admitted the SLD report as a business record, id., at 44–46, 57.3 The jury convicted Bullcoming of aggravated DWI, and the New Mexico Court of Appeals upheld the conviction, concluding that "the blood alcohol report in the present case was non-testimonial and prepared routinely with guarantees of trustworthiness." 2008–NMCA–097, ¶ 17, 144 N.M. 546, 189 P.3d 679, 685.

C

While Bullcoming's appeal was pending before the New Mexico Supreme Court, this Court decided Melendez–Diaz . In that case, "[t]he Massachusetts courts [had] admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine." 557 U.S., at ––––, 129 S.Ct., at 2530. Those affidavits, the Court held, were " ‘testimonial,’ rendering the affiants ‘witnesses' subject to the defendant's right of confrontation under the Sixth Amendment." Ibid.

In light of Melendez–Diaz, the New Mexico Supreme Court acknowledged that the blood-alcohol report introduced at Bullcoming's trial qualified as testimonial evidence. Like the affidavits in Melendez–Diaz, the court observed, the report was "functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination." 226 P.3d, at 8 (quoting Melendez–Diaz, 557 U.S., at ––––, 129 S.Ct., at 2532 ).4 nevertheless, for two reasons, the court hELD THAT ADMISSION OF THE report did not violate the Confrontation Clause.

First, the court said certifying analyst Caylor "was a mere scrivener," who "simply transcribed the results generated by the gas chromatograph machine." 226 P.3d, at 8–9. Second, SLD analyst Razatos, although he did not participate in testing Bullcoming's blood, "qualified as an expert witness with respect to the gas chromatograph machine." Id., at 9. "Razatos provided live, in-court testimony," the court stated, "and, thus, was available for cross-examination regarding the operation of the ... machine, the results of [Bullcoming's] BAC test, and the SLD's established laboratory procedures." Ibid. Razatos' testimony was crucial, the court explained, because Bullcoming could not cross-examine the machine or the...

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