State v. Christian

• Citation: 1995 NMCA 27,119 N.M. 776,895 P.2d 676
• Decision Date: 13 March 1995
• Docket Number: No. 15,484,15,484
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles D. CHRISTIAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 676

895 P.2d 676

119 N.M. 776

STATE of New Mexico, Plaintiff-Appellee, v. Charles D. CHRISTIAN, Defendant-Appellant.

No. 15,484.

Court of Appeals of New Mexico.

March 13, 1995.

Certiorari Denied April 20, 1995.

[119 N.M. 778] Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, NM for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, NM for defendant-appellant.

OPINION

BOSSON, Judge.

Defendant appeals his conviction for driving while under the influence of intoxicating liquor (DWI), based upon a blood-alcohol level exceeding .10%. We discuss whether a blood-alcohol report from the Scientific Laboratory Division of the New Mexico Department of Health (state laboratory), can properly be admitted into evidence under the exceptions to the hearsay rule for business records and public records, where the author of the report does not testify. See SCRA 1986, 11-803(F) & (H) (Repl.1994). We also discuss whether admission of this report violates Defendant's right to confrontation under the United States Constitution. We affirm Defendant's conviction based on that report. See NMSA 1978, Sec. 66-8-102(A) & (C) (Cum.Supp.1993) (effective until Jan. 1, 1994).

FACTS

While driving home on April 30, 1993, Defendant swerved to avoid hitting a herd of antelope running across the road. His van veered to the side of the road, rolled over, and landed in a ditch. Defendant admitted drinking two beers in town and buying another six-pack on the way home. Upset about the accident, Defendant drank another four beers at the accident site. When police arrived, the van was upright in the ditch with the engine running and the tires spinning. Defendant was sitting in the driver's seat. Several witnesses testified to Defendant's appearance of intoxication.

At the hospital, Defendant consented to a blood-alcohol test in the presence of a state police officer. The officer observed the nurse draw two vials of blood using a kit provided by the state laboratory. The officer helped seal the vials and send them to the state laboratory for analysis.

A chemist for the state laboratory, Alexander Gallegos, extracted two samples from one vial and tested each sample for blood-alcohol content. Based on the two independent tests, Gallegos prepared a blood-alcohol report (the Gallegos report), which concluded that Defendant's blood-alcohol level was .16%, far in excess of the legal limit. However, Gallegos did not testify at trial. Instead, the State called his supervisor, Dr. Jeffrey Robb, to lay the evidentiary foundation for the test results and blood-alcohol report. Based upon Dr. Robb's testimony, the blood-alcohol report was admitted into evidence as a business record.

Using a general verdict, a jury found Defendant guilty of DWI. The trial court instructed the jury that it could convict upon a finding of driving either, "while under the influence" or, in the alternative, with a blood-alcohol level of .10% or more. NMSA 1978, Sec. 66-8-102(A) & (C); SCRA 1986, 14-4501 & 14-4503. The jury was not required to specify the basis for its verdict. At the time of Defendant's conviction, State v. Shade, 104 N.M. 710, 722, 726 P.2d 864, 876 (Ct.App.), cert. quashed, 104 N.M. 702, 726 P.2d 856 (1986) required that, under a general verdict, sufficient evidence support each alternative theory of guilt. The very recent opinion of this Court in State v. Olguin, 118 N.M. 91, 879 P.2d 92 (Ct.App.), cert. granted, 118 N.M. 90, 879 P.2d 91 (1994), overruled Shade on this point. Id. at 98, 879 P.2d at 99. Because Olguin was filed after Defendant's conviction, the parties disagree about its applicability to this case. We need not decide this issue because the evidence sufficiently supports both theories. In fact, Defendant does not deny the presence of substantial evidence to prove driving "under the influence," based upon the rather graphic testimony of those who observed Defendant at the scene. Instead, Defendant challenges the alternative basis for his conviction, namely the blood-alcohol level of .10% or more. Underlying that challenge, Defendant attacks the admission of the Gallegos report into evidence and any reference to that report in Dr. Robb's testimony.

DISCUSSION

1. Business Records Exception

The reliability of business records is usually premised upon routine, trusted patterns of record generation and the confidence engendered by showing that a particular record is created and maintained in conformity with that routine. See United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993). The Advisory Committee Note to Rule 803 of the Federal Rules of Evidence (virtually identical to New Mexico's Rule 11-803(F)) states:

The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.

Fed.Rules Evid.Rule 803, 28 U.S.C.A. (West 1984).

Defendant argues that these blood-alcohol reports do not satisfy this criteria. Specifically, Defendant would confine business records admitted under Rule 803(F) to information relied upon by a business as accurate internal records, like personnel or accounting documents, which are created in the ordinary course of business. In contrast, Defendant challenges blood-alcohol reports created by the state laboratory because they are based upon individual tests. Since each report is prepared only once, from a test for one individual, Defendant argues that blood-alcohol reports cannot be the product of "systematic checking," continuity, habit, and routinely repeated activity. Further, unlike personnel or accounting records, the state laboratory itself does not rely upon the accuracy of these records for its own internal purposes; reports are prepared for others, and unlike a for-profit business, the state laboratory does not suffer financially if these records fail. Finally, Defendant emphasizes that the state laboratory prepares the reports specifically for litigation, not "in the ordinary course" of its own internal business, and Defendant correctly notes that documents with a specific litigation motive demand closer scrutiny. See John Wentworth, New Mexico Rules of Evidence 803-23 (Murl A. Larkin ed., rev. ed. 1991) [hereinafter Larkin]; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 803(6), at 803-208 (1990) [hereinafter Weinstein].

In our judgment, Defendant takes too narrow a view of the Rules of Evidence. While the model he proposes of personnel and accounting records might arguably be the safest in terms of reliability and trustworthiness, this does not mean that other records, like those offered here, cannot also satisfy a threshold standard of reliability. See State v. Ramirez, 89 N.M. 635, 645-46, 556 P.2d 43, 52-53 (Ct.App.1976) (state police crime laboratory reports admissible where proper foundation of trustworthiness has been established).

Dr. Robb laid an extensive foundation. Pursuant to NMSA 1978, Section 24-1-22 (Repl.Pamp.1994), the state laboratory has a legal duty to monitor and certify all blood-alcohol testing. This duty includes the establishment of quality control measures for the laboratory, usually in the form of regulations. The state laboratory has a corresponding duty to comply with the division's regulations. Id. Therefore, there is every indication of a "duty to make an accurate record" within the meaning of the federal Advisory Committee Note.

Dr. Robb testified to the state laboratory's compliance with this duty. He stated that the state laboratory regularly and routinely performs blood-alcohol tests in thousands of DWI cases from across the state, as well as in post-mortem examinations to determine the cause of death. Proper quality control procedures employed by the state laboratory include preserving the blood sample in two separate vials. Only one vial is tested; the other is kept in cold storage. If there are any doubts about the veracity of the initial test, the second vial is available for retesting and comparison. The actual testing is performed by a gas chromatograph machine which is calibrated daily. Defendant did not challenge the reliability of the gas chromatograph at trial. A laboratory chemist then follows a certain specified procedure that translates the results of the gas chromatograph test into blood-alcohol content. Thereafter, the chemist prepares reports, just like the one in question. Although the state laboratory is not a for-profit business, chemists like Gallegos must produce accurate reports or face termination. Further, the state laboratory maintains a reputation for the high degree of accuracy in its blood-alcohol determinations. Therefore, these reports share many of the characteristics noted in the federal Advisory Committee Note of systematic checking, regularity, continuity, habits of precision, actual experience of reliance, and a duty of accuracy.

Furthermore, the uncontradicted evidence was that chemist Gallegos prepared this report in strict accordance with these same procedures. Dr. Robb reviewed the report and concluded that Gallegos followed appropriate test procedures. Defendant presented no evidence to the contrary, such as an irregularity in the procedures. Dr. Robb personally confirmed the conclusions of the Gallegos report by recalculating Defendant's blood-alcohol level based upon the gas chromatograph results, in effect retracing the same steps followed by Gallegos. Although Dr. Robb did not perform or supervise the original test, this fact is of little consequence when the test is done mechanically. The business record exception only requires the foundational testimony of a "qualified witness"; it is not limited to the one...