State v. Lutz

• Decision Date: 26 July 2012
• Docket Number: No. 20120091.,20120091.
• Citation: 820 N.W.2d 111,2012 ND 156
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Travis Trainor LUTZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

820 N.W.2d 111

2012 ND 156

STATE of North Dakota, Plaintiff and Appellee

v.Travis Trainor LUTZ, Defendant and Appellant.

No. 20120091.

Supreme Court of North Dakota.

July 26, 2012.

Justin J. Schwarz, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Chad R. McCabe, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1]Travis Trainor Lutz appealed from a criminal judgment entered after he conditionally pled guilty to the charge of driving under the influence.Because we conclude the State was required to produce at trial the nurse who drew Lutz's blood, we reverse and remand for further proceedings.

I.

[¶ 2] In September 2011, Lutz was charged with driving under the influence and submitted to a blood draw, which was conducted by a nurse.The State notified Lutz of its intent to introduce an analytical report at trial under N.D.R.Ev. 707.Lutz objected and demanded the State produce the arresting officer, the nurse who drew his blood sample, the lab analysts, including Stephanie Kleinjan, who conducted the chemical test, and Lisa Hentges, who prepared the volatiles solution used during the chemical test, and any evidence custodians or mail clerks involved in the matter.Lutz filed a motion in limine seeking to exclude the analytical report without the requested witnesses' presence at trial.The State opposed Lutz's motion, arguing it was in compliance with N.D.R.Ev. 707 because it planned to call Kleinjan and the arresting officer at trial.The district court held a hearing on the matter and denied Lutz's motion in limine.Lutz withdrew his plea of not guilty and entered a conditional guilty plea, reserving the right to appeal the district court's decision on his motion in limine.Lutz and the State filed a stipulation for the conditional plea, and the district court entered a criminal judgment.

II.

[¶ 3]“We review a district court's decision on a motion in limine for an abuse of discretion.”State v. Buchholz,2006 ND 227, ¶ 7, 723 N.W.2d 534.A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner or if it misinterprets or misapplies the law.State v. Kleppe,2011 ND 141, ¶ 8, 800 N.W.2d 311.“Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo.”State v. Blue,2006 ND 134, ¶ 6, 717 N.W.2d 558.

III.

[¶ 4] Lutz argues the district court abused its discretion in denying his motion in limine because N.D.R.Ev. 707 and the Confrontation Clause require the State to produce at trial the nurse who drew his blood sample, Kleinjan, Hentges, any evidence custodians or mail clerks involved in the matter, and the arresting officer.Lutz asserts the analytical report should not be admitted into evidence without the presence of these witnesses at trial.He also asserts the analytical report should not be received into evidence because the State cannot establish the chain of custody.

A.

[¶ 5]Rule 707, N.D.R.Ev., provides in part:

Analytical Report Admission; Confrontation

(a) Notification to Defendant.If the prosecution intends to introduce an analytical report issued under N.D.C.C. chs. 19–03.1, 19–03.2, 19–03.4, 20.1–13.1, 20.1–15, 39–06.2, or 39–20 in a criminal trial, it must notify the defendant or the defendant's attorney in writing of its intent to introduce the report and must also serve a copy of the report on the defendant or the defendant's attorney at least 30 days before the trial.

(b) Objection.At least 14 days before the trial, the defendant may object in writing to the introduction of the report and identify the name or job title of the witness to be produced to testify about the report at trial.If objection is made, the prosecutor must produce the person requested.If the witness is not available to testify, the court must grant a continuance.

(c) Waiver.If the defendant does not timely object to the introduction of the report, the defendant's right to confront the person who prepared the report is waived.

We recently considered whether N.D.R.Ev. 707 and the Confrontation Clause require the State to produce at trial the nurse who drew the defendant's blood sample in State ex rel. Roseland v. Herauf,2012 ND 151, 819 N.W.2d 546.The majority in Herauf interpreted N.D.R.Ev. 707 together with N.D.C.C. § 39–20–07 and concluded that N.D.R.Ev. 707 required the State to produce at trial the person who drew the defendant's blood sample to satisfy the constitutional requirements of N.D.C.C. § 39–20–07.Herauf,at ¶ 18.The majority reasoned:

[9]Rule 707, N.D.R.Ev., was adopted in response to Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527[174 L.Ed.2d 314](2009).SeeN.D.R.Ev. 707, Explanatory Note.In Melendez–Diaz, the United States Supreme Court held that certificates of analysis, which showed the results of forensic analysis performed on seized substances, were testimonial statements for confrontation purposes.Melendez–Diaz,129 S.Ct. at 2531–32.The Court outlined what qualifies as testimonial:

ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony 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.

Id. at 2531(quotingCrawford v. Washington,541 U.S. 36, 51–52[124 S.Ct. 1354, 158 L.Ed.2d 177](2004)).The Court concluded the certificates constituted affidavits and therefore were testimonial because they were “solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact.”Melendez–Diaz,129 S.Ct. at 2532(quotingCrawford,541 U.S. at 51[124 S.Ct. 1354]).Additionally, the certificates were made under circumstances which would lead an objective, reasonable witness to believe the certificates would later be used at trial, and “under Massachusetts law the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance[.]”Melendez–Diaz,129 S.Ct. at 2532(quotingMass. Gen. Laws, ch. 111, § 13(2004))(emphasis in original).SeeWilliams v. Illinois[––– U.S. ––––, 132 S.Ct. 2221, 2232–33, 2265–66, 183 L.Ed.2d 89], 2012 WL 2202981, at **10, 41(U.S.June 18, 2012)(plurality opinion)(Kagan, J., dissenting)(reaffirming the testimonial nature of the certificates in Melendez–Diaz because they were created solely to provide evidence against the defendant).Absent a showing that the analysts who prepared the certificates of analysis were unavailable for trial and the defendant had a prior opportunity to cross-examine them, the defendant was entitled to confront the analysts at trial.Melendez–Diaz,129 S.Ct. at 2532.The Court clarified its holding:

Contrary to the dissent's suggestion, ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case.While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody,” ... this does not mean that everyone who laid hands on the evidence must be called.

Id. at 2532, n. 1.The Court also held that a defendant's ability to subpoena an analyst does not abrogate the prosecutor's obligation under the Confrontation Clause to produce the analyst.Id. at 2540.The Court acknowledged the validity of notice-and-demand statutes, which require the prosecution to notify the defendant of its intent to introduce an analytical report, after which the defendant may object to admission of the report without the analyst's appearance at trial.Id. at 2541.

[10]The Supreme Court recently revisited Melendez–Diaz in Bullcoming v. New Mexico[––– U.S. ––––], 131 S.Ct. 2705[180 L.Ed.2d 610](2011).In Bullcoming,the defendant was arrested for driving under the influence.Bullcoming,131 S.Ct. at 2709.At trial, the State presented a forensic lab report certifying the defendant's blood-alcohol concentration was over the legal limit.Id.Rather than calling the analyst who prepared and signed the certification, the State called a different analyst who was familiar with the lab's testing procedures but did not participate in or observe the test performed on the defendant's blood sample.Id.The Court held this procedure violated the defendant's confrontation right because the certified report was testimonial and the State did not produce the analyst who certified the report.Id. at 2710.The Court rejected the argument that the report was nontestimonial because it determined the report was created for an evidentiary purpose as part of a police investigation.Id. at 2717.See Williams, 2012 WL 2202981, at **11, 41(plurality opinion)(Kagan, J., dissenting)(reiterating that the report in Bullcoming was testimonial because it was a signed document created to prove facts in a criminal proceeding).The Court also concluded the fact that the report was unsworn was not dispositive in determining if the report was testimonial, and the formalities accompanying the report, including the preparer's signature, were more than adequate to make the report testimonial.Bullcoming,131 S.Ct. at 2717.

[11]Rule 707, N.D.R.Ev., must be interpreted in light of N.D.C.C. § 39–20–07, which governs the admission of analytical reports into evidence, because the rule and the statute are interconnected regarding analytical reports, as demonstrated by the language of the rule. SeeN.D.R.Ev. 707(a)(referencing ...