State v. Aragon

• Decision Date: 12 February 2010
• Docket Number: No. 31,187.,31,187.
• Citation: 2010 NMSC 008,225 P.3d 1280
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Anthony ARAGON, Defendant-Petitioner.
• Court: New Mexico Supreme Court

225 P.3d 1280

2010 NMSC 008

STATE of New Mexico, Plaintiff-Respondent, v. Anthony ARAGON, Defendant-Petitioner.

No. 31,187.

Supreme Court of New Mexico.

February 12, 2010.

Hugh W. Dangler, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} Anthony Aragon ("Defendant") appeals his conviction for possession of methamphetamine, arguing that his Sixth Amendment right to confront witnesses against him was violated when a chemical forensic report was admitted into evidence based on testimony from an analyst who had not prepared the report. The Court of Appeals affirmed his conviction, holding that admission of the report did not implicate Defendant's confrontation rights because the report is non-testimonial hearsay under State v. Dedman, 2004-NMSC-037, ¶ 30, 136 N.M. 561, 102 P.3d 628. State v. Aragon, No. 26,185, slip op. at 9 (N.M. Ct.App. June 4, 2008).

{2} In light of the recent Supreme Court opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) and this Court's opinion in State v. Bullcoming, 2010-NMSC-007, ___ N.M. ___, 226 P.3d 1 (2010), in which we overruled Dedman, we hold that the report prepared by the non-testifying forensic scientist and the trial testimony regarding that report were inadmissible and violated Defendant's right of confrontation. Nonetheless, we determine that the errors of admission were harmless beyond a reasonable doubt and affirm the conviction.

I. BACKGROUND

{3} On November 8, 2003, Roswell police executed a narcotic search warrant at a home in Roswell. Upon arrival, police found Defendant hiding under a tarp in the basement, and he was taken outside with the other occupants of the residence. Police found a "little clear plastic bag of a whitish, crystal substance" in the basement, "right where [Defendant's] hands were" when the officer located him. A second officer found a larger clear plastic bag in the pocket of a jacket located in an upstairs bedroom that also contained a whitish crystal-like substance. The officer took the jacket outside and asked the occupants who owned it. Defendant initially confirmed that the jacket was his, but immediately changed his response, denying ownership.

{4} Both plastic bags were sent to the New Mexico Department of Public Safety's Las Cruces Forensics Laboratory ("Southern Crime Laboratory") for analysis. Southern Crime Laboratory forensic chemist Eric D. Young ("Young") analyzed the larger bag that was found in the jacket pocket and prepared a report that was admitted into evidence as Exhibit 12, describing the chemical makeup of the bag's contents. Young concluded that it contained 64 percent pure methamphetamine and weighed 6.93 grams. Andrea Champagne ("Champagne"), also at that time a forensic chemist at the Southern Crime Laboratory, conducted an analysis and prepared a similar report on the contents of the smaller bag that was found near Defendant in the basement. She concluded that it was 64.3 percent pure methamphetamine and weighed 1.05 grams. Her report was admitted into evidence as Exhibit 13.

{5} Young testified at trial regarding the results of his analysis, the associated report, the laboratory procedure for preparing such reports, and the fact that Champagne did the analysis and prepared a similar report on the contents of the smaller bag. Young also testified regarding the contents and conclusion contained in Champagne's report. Champagne's report was admitted into evidence over defense counsel's objection that admission of the report would violate Defendant's right of confrontation because the report is inadmissible testimonial hearsay. The district court admitted both reports under the "[r]ecords of regularly conducted activity" and "[p]ublic records and reports" exceptions to the rule against hearsay, Rules 11-803(F) and (H) NMRA, respectively. Although the district court found that Champagne's chemical analysis report was "testimonial" for purposes of the Confrontation Clause, U.S. Const. amend. VI, it allowed Young to testify regarding Champagne's analysis and opinion, even though Young did not observe, supervise, or participate in either the analysis or the preparation of the report. The jury convicted Defendant on one count of possession of a controlled substance.

II. DISCUSSION

A. ADMISSION OF THE FORENSIC CHEMIST'S REPORT PREPARED BY A NON TESTIFYING ANALYST VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION.

{6} Defendant contends that admission of Champagne's forensic report, identifying the white, crystal-like substance in the smaller bag as methamphetamine, violated his confrontation rights because the report is testimonial in nature, and he did not have an opportunity to cross-examine her.

"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. Out-of-court testimonial statements are barred under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the court.

State v. Zamarripa, 2009-NMSC-001, ¶ 23, 145 N.M. 402, 199 P.3d 846 (2008) (citing Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Questions of admissibility under the Confrontation Clause are questions of law, which we review de novo. Id. ¶ 22. In Crawford, the Supreme Court "once again reject[ed] the view that the Confrontation Clause applies of its own force only to in-court testimony[.]" 541 U.S. at 50, 124 S.Ct. 1354. Rather, Crawford held that "[i]t applies to witnesses against the accused—in other words, those who bear testimony,"—where "testimony" is a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51, 124 S.Ct. 1354 (internal quotation marks and citation omitted). Therefore, only testimonial statements "cause the declarant to be a witness within the meaning of the Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (internal quotation marks and citation omitted). Although it did not offer a comprehensive definition of "testimonial," the Court identified a "core class of testimonial statements":

ex parte in-court testimony or its functional equivalent ... that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[;] ... extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[;] ... statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[;] and to police interrogations.

Crawford, 541 U.S. at 51-52, 68, 124 S.Ct. 1354 (internal quotation marks and citations omitted). Such testimonial hearsay is barred by the Sixth Amendment unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 53-54, 68, 124 S.Ct. 1354. Crawford also reiterated the Court's prior holding in California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citation omitted). "The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Id. (citation omitted). Once it has been established that the Confrontation Clause does not bar admission of the statement, the rules of evidence govern whether the statement is admissible.

{7} Eight months after the United States Supreme Court filed its opinion in Crawford we issued our opinion in Dedman, and held that blood-alcohol reports prepared by the New Mexico Department of Public Health's Scientific Laboratory Division are admissible hearsay under the "public record" exception of Rule 11-803(H). 2004-NMSC-037, ¶ 24, 136 N.M. 561, 102 P.3d 628. We determined that the reports were non-testimonial because although they are "prepared for trial, the process is routine, non-adversarial, and made to ensure an accurate measurement." Id. ¶ 30. We were persuaded that laboratory personnel are "not law enforcement, and the report is not investigative or prosecutorial." Id. Ultimately, we concluded that such forensic reports were "very different from the other examples of testimonial hearsay evidence: `prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations.'" Id. (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354).

{8} Since we decided Dedman, the United States Supreme Court has issued its fractured opinion in Melendez-Diaz. In Melendez-Diaz, the Court held that affidavit reports prepared and sworn to by analysts at a state crime laboratory identifying a substance as cocaine "are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination," and so "fall within the core class of testimonial statements[.]" 557 U.S. at ___, 129 S.Ct. at 2532 (internal quotation marks and citations omitted). Analysts are witnesses against defendants because, in the case of narcotics, they prove a fact necessary for conviction: that the substance in question is the contraband the prosecution alleges it to be. See id. at ___, 129 S.Ct. at 2533. In essence, a person is a witness for Confrontation Clause purposes when that...