State v. Chavez, A-1-CA-39108

Case DateNovember 22, 2022
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

MARTY CHAVEZ, Defendant-Appellant.

No. A-1-CA-39108

Court of Appeals of New Mexico

November 22, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.


Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM for Appellee

Harrison & Hart, LLC Nicholas T. Hart Albuquerque, NM for Appellant



{¶1} Following a jury trial, Marty L. Chavez (Defendant) was convicted of aggravated driving while under the influence of intoxicating liquor or drugs (DWI) (refused testing) (8th Offense), contrary to NMSA 1978, Section 66-8-102(D)(3) (2016); driving without insurance, contrary to NMSA 1978, Section 66-5-205 (2013);


and open container (possession), contrary to NMSA 1978, Section 66-8-138(B) (2001). On appeal, Defendant argues that: (1) the admission of Defendant's toxicology report (State's Exhibit 3) and the corresponding testimony by the State's expert witness violated the Confrontation Clause of the New Mexico and the United States Constitutions; and (2) insufficient evidence supports Defendant's aggravated DWI conviction. For the reasons that follow, we affirm.


{¶2} Because this is an unpublished memorandum opinion written solely for the benefit of the parties, see State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361, and the parties are familiar with the factual and procedural background of this case, we omit a background section and leave the discussion of the facts for our analysis of the issues.


I. Confrontation Clause

A. The Expert Testimony

{¶3} Defendant argues that his confrontation right was violated because the State's expert witness had no part in creating the report or testing the sample of blood provided by Defendant. The State argues that its expert's testimony is constitutionally sound because the expert came to independent conclusions based on his review of the underlying raw data. We agree with the State.


{¶4} Under the Sixth Amendment to the United States Constitution, "every criminal defendant shall enjoy the right to be confronted with the witnesses against him." State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d 110 (omission, internal quotation marks, and citation omitted). The Confrontation Clause applies to witnesses against the accused who provide testimony to establish or prove some fact. Id. We review claimed violations of the confrontation right de novo. Id.

{¶5} A defendant's right to confrontation is violated when an out-of-court statement that is testimonial is introduced against the accused at trial "'unless the witness who made the statement is unavailable, and the accused has had a prior opportunity to confront that witness.'" State v. Dorais, 2016-NMCA-049, ¶ 26, 370 P.3d 771 (quoting Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011)). "[T]he introduction of testimony through a substitute or surrogate witness attesting to [an] original analyst's report violate[s] the defendant's right to confrontation." State v. Gonzales, 2012-NMCA-034, ¶ 12, 274 P.3d 151 (citing Bullcoming, 564 U.S. at 652).

{¶6} Following the United States Supreme Court's line of confrontation cases, beginning with Crawford v. Washington, 541 U.S. 36 (2004), our courts have made clear that the Confrontation Clause is not offended when "an expert who has analyzed the raw data generated by another analyst and who has formed independent conclusions based upon that analysis . . . testif[ies] as to those conclusions." State v. Huettl,


2013-NMCA-038, ¶ 36, 305 P.3d 956; see also State v. Navarette, 2013-NMSC-003, ¶ 22, 294 P.3d 435 ("[A]n expert witness may express an independent opinion regarding his or her interpretation of raw data without offending the Confrontation Clause."). However, allowing a witness to parrot out-of-court testimonial statements from an unavailable witness in the guise of expert opinion would constitute an impermissible violation of the Confrontation Clause. Huettl, 2013-NMCA-038, ¶ 38.

{¶7} Thus, the issue before us is whether the State's expert witness reviewed the raw data generated by a colleague at the New Mexico State Scientific Laboratory (SLD) and formed an independent conclusion based on his review of the data or instead merely repeated out-of-court testimonial statements from an unavailable witness under the guise of an expert opinion.

{¶8} At trial, the State did not call the original analyst who tested Defendant's blood. Instead, the State called Mr. Martin Lindonbush, a forensic toxicology supervisor employed with SLD. During his testimony, Mr. Lindonbush explained what generally happens...

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