Robert Olaf Anderson v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 13

OCTOBER TERM, A.D. 2013

January 27, 2014

ROBERT OLAF ANDERSON,

Appellant
(Defendant),

v. S-13-0019

THE STATE OF WYOMING,

Appellee
(Plaintiff).

Appeal from the District Court of Albany County
The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, State Public Defender;
Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant
Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr.
Pope.

Before KITE, C.J., and VOIGT,* BURKE, and DAVIS, JJ, and James, D.J.

*Justice Voigt retired effective January 3, 2014.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
VOIGT, Justice.

[¶1] A jury convicted the appellant of felony driving while under the influence of
alcohol. He now challenges two rulings of the district court—one concerning discovery
and one concerning the admissibility of evidence—and also alleges his trial counsel was
ineffective. Finding no error, we affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion by denying in part the appellant’s
pretrial Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of
Compliance with Statutory Predicate for Admission of a Chemical Test Result Under
W.S. 31-6-105(a)?

2. Did plain error occur, in the form of a violation of the appellant’s
constitutional right to confrontation, when the State’s expert witness testified as to the
operation, maintenance, and accuracy of the breath alcohol test machine used in this
case?

3. Was the appellant’s trial counsel ineffective in not calling an expert witness to
testify as to the effect of diabetes on the results of a breath alcohol test?

FACTS

[¶3] The underlying facts of the traffic stop and arrest are not particularly material in
this case. Suffice it to say that, upon receiving a REDDI1 report, a Laramie police officer
investigated and eventually arrested the appellant for per se driving while under the
influence of alcohol.2 During this process, the appellant “blew” blood alcohol content
(BAC) tests that resulted in readings of 0.088% and 0.086%.

[¶4] The State charged the appellant with one count of felony driving while under the
influence of alcohol (DWUI) and the case proceeded towards trial. During the discovery
phase, the appellant requested a substantial amount of information from the State relating
to the breathalyzer, an Intoximeter EC/IR II, used to test his breath. The request
included: (1) the appellant’s breath test results; (2) the appellant’s Operational Checklist
for Intoximeter EC/IR I or II; (3) the most recent version of the Wyoming Intoximeter

1
REDDI stands for “Report Every Drunk Driver Immediately.”
2
Wyo. Stat. Ann. § 31-5-233(b)(i) (LexisNexis 2013) reads in pertinent part:

(b) No person shall drive or have actual physical control of any vehicle
within this state if the person:
(i) Has an alcohol concentration of eight one-hundredths of one
percent (0.08%) or more[.]

1
EC/IR administrator manual; (4) the complete IntoxNet database in an electronic format
for the Intoximeter EC/IR II used in the case (serial number 008087); (5) all monthly logs
for the Intoximeter EC/IR II used in the case; (6) all maintenance records for the
Intoximeter EC/IR II used in the case; and (7) all Litigation Support Packages that have
ever been created for the Intoximeter EC/IR II used in the case. The State provided the
appellant with three of these items: his breath test results, the Operational Checklist, and
the administrator manual. It also provided the Litigation Support Package for the
appellant’s case, but none of the packages created in unrelated cases. The State objected
to the remaining requests, asserting the appellant had a right only to the information
directly related to his case.

[¶5] Presented with this discovery dispute, the district court held a hearing, taking
testimony from two potential expert witnesses concerning the subject breathalyzer’s
accuracy. The appellant presented Dr. Citron, an ophthalmologist, and the State
presented Michael Moore, the head of Wyoming’s chemical testing unit. Dr. Citron
testified the general historical information from the IntoxNet database would allow him
to decide if the machine was working properly; however, he admitted nothing in the
information related to the appellant’s test indicated it was rendering inaccurate results.
The State’s witness, Moore, also testified that his review of the data related to the
appellant’s tests did not suggest the machine was inaccurate and unreliable. Moore also
explained that the required annual certification checks, monthly accuracy checks, and
related safeguards ensured the machine’s accuracy and reliability

[¶6] Based upon the evidence presented at the hearing and analysis of controlling
statutes and rules, the district court issued a clear and cogent order denying the
appellant’s discovery request, consistent with the State’s objection. It explained:

The statutory subsection [Wyo. Stat. Ann. § 31-6-105(e)
(LexisNexis 2013)] relied upon by [the appellant] is clear and
unambiguous on its face. It requires the defendant to receive
information regarding his chemical test. It does not, however,
authorize [the appellant] to receive information regarding any
other test conducted by the Intoximeter EC/IR II used in this
case. Stated simply, it does not support his request for the
remaining items.

(Emphasis in original). The district court also found the quality procedures—annual
certification, maintenance program, monthly accuracy checks—provided assurances that
“nothing concerning [the appellant’s] test warrants questioning the reliability of the
Intoximeter EC/IR II used in this case in the manner desired by [the appellant].” Thus, it
determined the IntoxNet data and other requests for general information concerning the
breathalyzer were “not sufficiently material to the preparation of [the appellant’s] defense
to require discovery under Rule 16 [of the Wyoming Rules of Criminal Procedure].”

2
[¶7] The case then proceeded to trial, during which the State established that the
appellant had driven with a BAC above the legal limit. Particularly, the jury was
presented with the appellant’s breath tests resulting in readings of 0.088% and 0.086%.
The State called Moore as an expert witness to explain the certification, maintenance, and
calibration process for the Intoximeter EC/IR II. Moore opined the machine used on the
appellant was reliable, basing his opinion on a breadth of available information including
its certification records.

[¶8] The appellant did not present his own expert, Dr. Citron. Instead, his strategy
focused on attacking Moore’s credibility. The appellant attempted to show that, even
though the machine previously had been certified as being accurate, it still had a
propensity of being inaccurate and unreliable. On cross-examination, Moore conceded
the subject machine previously had been taken out of service to be repaired and had also
registered “mouth alcohol abort” messages on several occasions. But Moore was quick
to clarify that a mouth abort message is not “an error in itself.” Rather, such a message
“means that there’s alcohol in the mouth from some sources and [the machine] detects it
and aborts the test, so it will not do an analysis on that subject at that point in time.” Put
another way, the machine would display such a message and shut down when it detected
possible foreign substances that could taint the test. Ultimately, Moore continued to
conclude the machine was reliable.

[¶9] The jury found the appellant guilty of felony driving while under the influence of
alcohol, in violation of Wyo. Stat. Ann. § 31-5-233(b)(i) (LexisNexis 2013) (fourth or
subsequent offense within ten years). The district court imposed a sentence of twenty to
twenty-four months incarceration, with credit for time served. This appeal followed.

DISCUSSION

Did the district court abuse its discretion by denying in part the
appellant’s pretrial Request for IntoxNet Database Pursuant to
W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate
for Admission of a Chemical Test Result Under W.S. 31-6-105(a)?

[¶10] Before trial, the appellant filed a Request for IntoxNet Database Pursuant to W.S.
§ 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a
Chemical Test Result Under W.S. 31-6-105(a). The request centered on receiving access
to the “IntoxNet” database, which is maintained by the Wyoming Chemical Testing
Program. This database contains information on most, if not all, of the previous breath
tests performed by Intoximeter EC/IR II machines, including the one used in this case.
The appellant asserted his broad request was proper because the accuracy of the machine
used was questionable. The State objected, a hearing was held, and after being fully
informed, the district court denied the appellant access to the information in dispute. The

3
appellant now argues the district court erred because the information was important to
allow for a thorough cross-examination of the State’s witnesses and to ascertain the
accuracy of the machine.

[¶11] The appellant attempts to style this issue as one involving a Brady violation. See
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Based on
this characterization, he contends our review is de novo. We disagree. “To establish a
Brady violation, a defendant must show that the prosecution suppressed evidence, the
evidence was favorable to the defendant, and the evidence was material.” Kovach v.
State, 2013 WY 46, ¶ 20, 299 P.3d 97, 104 (Wyo. 2013) (citations and internal quotation
marks omitted). There is no allegation the State suppressed any evidence, which is
fundamental for a Brady violation. See Downing v. State, 2011 WY 113, ¶ 10, 259 P.3d
365, 368 (Wyo. 2011); DeLoge v. State, 2010 WY 60, ¶¶ 27-30, 231 P.3d 862, 868 (Wyo.
2010). The actual issue on appeal is one concerning the district court’s ruling on a
discovery matter. Discovery rulings are reviewed by this Court under the abuse of
discretion standard. Washington v. State, 2011 WY 132, ¶ 11, 261 P.3d 717, 721 (Wyo.
2011); Ceja v. State, 2009 WY 71, ¶ 11, 208 P.3d 66, 68 (Wyo. 2009). Our primary
concern is whether the district court’s decision is reasonable. Id.; Nelson v. State, 2009
WY 37, ¶ 12, 202 P.3d 1072, 1075 (Wyo. 2009). The appellant, the party challenging the
ruling here, has the burden to prove such an abuse. Id.; Person v. State, 2004 WY 149,
¶ 11, 100 P.3d 1270, 1275 (Wyo. 2004).

[¶12] Criminal defendants do not have a general constitutional right to discovery. Ceja,
2009 WY 71, ¶ 13, 208 P.3d at 68; Gale v. State, 792 P.2d 570, 575 (Wyo. 1990) (“[a
criminal defendant] does not have a general state or federal constitutional right to conduct
wide-ranging criminal discovery in the state’s files.”). Rather, such discovery rights
“must result from a statute, rule or trial court decision.” Hubbard v. State, 618 P.2d 553,
554 (Wyo. 1980); see also Kovach, 2013 WY 46, ¶ 50, 299 P.3d at 112; Ceja, 2009 WY
71, ¶ 13, 208 P.3d at 68 (“Thus, while a defendant may request or demand certain
information from the State, he is entitled to the information only insofar as required by
statute, rule or case law.”). The applicable statute and rule providing the appellant in this
case with the right to certain discovery are Wyo. Stat. Ann. § 31-6-105(e) (LexisNexis
2013) and W.R.Cr.P. 16.

[¶13] Wyoming’s implied consent statute provides defendants with the ability to seek
discovery related to the breath tests administered in their case. The pertinent statutory
subsection provides that

[u]pon the request of a person who undergoes a chemical test
or tests as required by a peace officer, full information
concerning the test or tests shall be made available to the
person or his attorney.

4
Wyo. Stat. Ann. § 31-6-105(e). The appellant contends the phrase “full information”
entitles him to all data regarding the subject machine. He asserts it includes access to the
IntoxNet database, maintenance logs, and every litigation support package, regardless of
whether it is generic information, related to another case, or directly related to his case.
We conclude otherwise.

[¶14] Pursuant to our well-established rules for statutory interpretation,3 we find Wyo.
Stat. Ann. § 31-6-105(e) clear and unambiguous. The State only must provide
information to the appellant related to his own chemical tests, nothing more. That is,
“full information concerning the test or tests” taken by the appellant. To decide
differently would require us to extend the provision to information that is not expressly
required. Redco Constr. v. Profile Properties, LLC, 2012 WY 24, ¶ 26, 271 P.3d 408,
416 (Wyo. 2012) (“[W]e will not enlarge, stretch, expand, or extend a statute to matters
that do not fall within its express provisions.”). The State complied with § 31-6-105(e)
when it provided the appellant with the results of his tests, the operational checklist used
during his tests, the manual for using the subject machine in his case, and the certification
records for the machine used.

[¶15] The appellant also attempts to expand the language of Wyo. Stat. Ann. § 31-6-
105(e), by bootstrapping it to Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2013). He
argues the latter broadens the scope of discoverable information contemplated under the
former. However, reading the provisions of Wyoming’s implied consent statute in pari
materia, we are not convinced the legislature intended such a result. See DiFelici v. City
of Lander, 2013 WY 141, ¶ 13, 312 P.3d 816, 820 (Wyo. 2013) (“All statutes must be
construed in pari materia . . . .”). Section 31-6-105(a) states:

(a) Chemical analysis of the person’s blood, breath or urine
to be considered valid under this section, shall be performed
according to methods approved by the department of health
and by an individual possessing a valid permit to conduct the
analysis. Permits shall be issued by the department of health
for this purpose. The department of health may promulgate
and approve satisfactory methods in order to ascertain the
qualifications of individuals permitted to conduct the analysis
and shall issue to qualified individuals permits which are
subject to termination or revocation by the department of
health.

3
In interpreting statutes, our primary consideration is to determine the legislature’s intent. Cheyenne
Newspapers, Inc. v. Building Code Bd. of Appeals of City of Cheyenne, 2010 WY 2, ¶ 9, 222 P.3d 158,
162 (Wyo. 2010). We first inquire as to the ordinary and obvious meaning of the words employed
according to their arrangement and connection, construing the statute in pari materia. Id. “When a
statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the
words and do not resort to the rules of statutory construction.” Id. (citation and quotation omitted).

5
It is plain this provision sets forth quality control standards for all tests administered, but
does not mention anything regarding discoverable information. The essence of ejusdem
generis provides helpful guidance. Under this doctrine “general words, [associated with]
an enumeration of words with specific meanings, should be construed to apply to the
same general kind or class as those specifically listed.” DiFelici, 2013 WY 141, ¶ 15,
312 P.3d at 821 (citations and quotations omitted). While the initial section, § 31-6-
105(a), requires chemical tests adhere to approved methods, it does not even generally
provide that certain information be discoverable. More importantly, it does not broaden
what is specifically discoverable under § 31-6-105(e). What is statutorily discoverable
pursuant to § 31-6-105 is found expressly and specifically in subsection (e).

[¶16] Because the State provided the appellant with all statutorily discoverable
information, we now turn our attention to the rule concerning the same. Rule 16 of the
Wyoming Rules of Criminal Procedure governs the extent of discovery in a criminal
case, which states in pertinent part:

(C) Documents and Tangible Objects. — Upon written
demand of the defendant, the state shall permit the defendant
to inspect and copy or photograph books, papers, documents,
photographs, tangible objects, buildings or places, or copies
or portions thereof, which are within the possession, custody
or control of the state, and which are material to the
preparation of the defendant's defense or are intended for use
by the state as evidence in chief at the trial, or were obtained
from or belong to the defendant.

(D) Reports of Examinations and Tests. — Upon written
demand of a defendant, the state shall permit the defendant to
inspect and copy or photograph any results or reports of
physical or mental examinations, and of scientific tests or
experiments, or copies thereof, which are within the
possession, custody, or control of the state, the existence of
which is known, or by the exercise of due diligence may
become known, to the attorney for the state, and which are
material to the preparation of the defense or are intended for
use by the state as evidence in chief at the trial.

W.R.Cr.P. 16(a)(1)(C)-(D).

[¶17] The appellant contends the complete IntoxNet database in an electronic format for
the Intoximeter EC/IR II used to administer the appellant’s tests, all monthly logs for the
subject machine, and all maintenance records regarding the same, are material to the

6
preparation of his defense. 4 “When considering the materiality of excluded evidence, we
must determine whether ‘there is a reasonable probability that the outcome of the case
would have been different’ had the evidence been admitted.” Washington, 2011 WY
132, ¶ 18, 261 P.3d at 722 (citations and quotations omitted). There are no such signs in
the instant case.

[¶18] The appellant argues that the only way to explore his concerns about the accuracy
of the Intoximeter EC/IR II is to dig through all the data in the IntoxNet database and
related generic information. However, after reviewing the record, we agree with the
district court’s decision not to allow discovery of the requested generic information. The
State’s expert, Moore, testified at the discovery hearing that his review of the data related
to the appellant’s tests did not indicate the machine was inaccurate or unreliable. Moore
explained that the required annual certification checks, monthly accuracy checks, and
related safeguards ensured the machine’s accuracy. Even the appellant’s proposed
expert, Citron, testified the provided information relating to the appellant’s test indicated
it was rendering accurate results. Indeed, if there was something wrong with the tests
taken by the appellant, the information provided to him—test results, operational
checklist, and litigation support package containing the maintenance and certification
records—surely would have flagged the problem. Nothing indicates the massive amounts
of generic data requested by the appellant would be material and contribute to his
defense.

[¶19] The district court was reasonable in denying discovery of the complete IntoxNet
database for the Intoximeter EC/IR II used to administer the appellant’s tests, all monthly
logs for the subject machine, and all maintenance records regarding the same, as that
information is not material to the appellant’s defense. It exercised sound judicial
discretion, which “is a composite of many things, among which are conclusions drawn
from objective criteria . . . with regard to what is right under the circumstances without
doing so arbitrarily or capriciously.” Washington, 2011 WY 132, ¶ 22, 261 P.3d at 723
(citations and quotations omitted).

4
The State does not rebut the appellant’s argument that this information is within the possession of the
prosecutor. Accordingly, for purposes of this case, we assume the requested information was within the
prosecutor’s custody or control.

7
 Did plain error occur, in the form of a violation of the appellant’s
constitutional right to confrontation, when the State’s expert witness
testified as to the operation, maintenance, and accuracy of the
breath alcohol test machine used in this case?

[¶20] We first address the applicable standard of review. The appellant contends he
made a proper objection to the admission of evidence that violates his right to
confrontation. As a result, he argues we must review the claim de novo. On the other
hand, the State asserts no such objection was made, resulting in a review for plain error.
We have reviewed the entire record and agree with the State that the appellant did not
raise a confrontation clause violation below. The closest semblance of such an objection
we found is as follows:

Really quickly, Your Honor. Just a quick objection on the
contents. We understand Mr. Moore is about to testify
concerning the annual maintenance and specifically that one
log that we have. It’s our position [Moss Kent] should be the
one testifying and not Mr. Moore. But just reserving that one.

This is at best an indistinct objection, providing no indication that it is one based upon a
constitutional confrontation clause violation. Thus, even though the appellant claims
constitutional error, without an appropriate objection, we will review his claim under a
plain error standard. See Bowlsby v. State, 2013 WY 72, ¶ 6, 302 P.3d 913, 915-16
(Wyo. 2013); see also Zumberge v. State, 2010 WY 111, ¶ 4, 236 P.3d 1028, 1030 (Wyo.
2010); Bush v. State, 2008 WY 108, ¶ 29, 193 P.3d 203, 210 (Wyo. 2008).

Even when constitutional error is alleged, each criterion must
be satisfied or a claim for review under the plain-error
doctrine will fail. To establish plain error, the appellant must
prove (1) the record clearly reflects the alleged error; (2) the
existence of a clear and unequivocal rule of law; (3) a clear
and obvious transgression of that rule of law; and (4) the error
adversely affected a substantial right resulting in material
prejudice to him.

Zumberge, 2010 WY 111, ¶ 4, 236 P.3d at 1030 (quoting Snow v. State, 2009 WY 117,
¶ 13, 216 P.3d 505, 509 (Wyo. 2009)).5

[¶21] Turning to the merits, the appellant contends testimony of the State’s expert,
Moore, concerning the accuracy of the testing device violated his right to confrontation.

5
We note the State concedes the first prong; that is, the testimony of Moore clearly appears in the record.
Accordingly, we will limit our analysis to the remaining prongs.

8
Specifically, the appellant relies on a sliver of Moore’s testimony concerning an annual
certification of the machine’s electronics and settings conducted by Moore’s colleague,
Moss Kent.6 However, after solicitously examining United States Supreme Court
precedent, we find Kent’s annual certification for the Intoximteter EC/IR II is non-
testimonial and not subject to the Confrontation Clause.

[¶22] Moore is the laboratory supervisor and senior forensic toxicologist for Wyoming’s
chemical testing program. The prosecution presented Moore as an expert to lay
foundation for the reliability of the Intoximteter EC/IR II used on the appellant.
Ultimately, Moore opined the subject machine was accurate and in compliance with
Wyoming’s requirements. In arriving at his opinion, he testified that he relied on a
breadth of information, the majority of which was based upon personal knowledge. For
instance, he testified working on the Intoximteter EC/IR II used on the appellant,
assessed data the machine had captured, and reviewed more than 1,000 tests it performed.
He also discussed the certification process of such machines from his own knowledge
and experience in conducting those certifications.

[¶23] Moore also testified that, in accordance with Wyoming’s rules and regulations, the
Intoximteter EC/IR II machines must be certified on an annual basis. He explained that
once a year the instrument is put through a series of tests to check the electronics and
settings. A series of solutions are then used to test the ability of the instrument to
measure alcohol accurately. If the instrument is producing accurate results and operating
properly, it will be certified. Of note, Moore conducted the annual certification for 2010,
the year immediately preceding the appellant’s tests, which showed no signs of
inaccuracies. This annual certification was included in the Litigation Support Package
given to the appellant, which Moore testified about at trial.7

[¶24] Additionally, Moore testified about the subsequent 2011 annual certification that
was also included in the Litigation Support Package. This annual certification was
conducted as a matter of routine two months after the appellant’s breath tests and
certified by Kent, not Moore. Like every other annual certification, it encompasses a
checklist with: results of an accuracy check, fuel cell diagnostics, blank samples, printer
self test, print out of current pass codes, barometric pressure check, RFI check, and
signature of the technician. We include this annual certification directly in our opinion
for ease of reference:

6
Kent is also a state forensic toxicologist, working in the same laboratory as Moore.
7
A litigation support package consists of: the Intoximeter EC/IR II instrument characteristics, an annual
certification check occurring before breath sample, an annual certification check occurring after breath
sample, certificate of analysis for dry gas standards, maintenance log sheet, IntoxNet report for person
tested, copy of permit of individual performing certification checks, and CV of expert witness.

9
[¶25] The extent of Moore’s testimony concerning the 2011 annual certification
performed by Kent is as follows:

Q. Now, is there a date that this machine or the Albany
County Sheriff’s machine was certified?
A. This particular certification was done on June 22 of 2011.
Q. And who did the certification?
A. This actual certification was done by Moss Kent.
Q. And who is he?
A. Moss Kent is one of the forensic toxicologists that works
in my lab.
Q. And I would like to turn your attention to pages 6
through, I believe it’s 16. What are we looking at with these?
A. Pages 6 through 16 are the actual printouts from the
instrument as we’re doing the certification. It’s what the
instrument prints out when we finish a test.
Q. And have you had a chance to review this?
A. Yes, I did.
Q. And based on your review, do you see any errors in these
printouts?
A. No, I do not.

10
The prosecutor did not introduce Kent’s annual certification into evidence and it was not
used to prove the truth of any matter asserted. It is this limited foundational testimony of
Moore’s, concerning the annual certification signed by Kent, with which the appellant
takes issue.

[¶26] Knowing the narrow circumstance concerning the appellant’s confrontation claim,
we turn to the controlling law of the land. Regarding the second prong of our plain error
analysis, a constitutional right to confront a witness arises under the Sixth Amendment to
the United States Constitution and Article I, Section 10 of the Wyoming Constitution.
Kramer v. State, 2012 WY 69, ¶ 19, 277 P.3d 88, 93 (Wyo. 2012), cert. denied, 133 S.Ct.
483 (2012). The central right protected by the Confrontation Clause of the United States
and Wyoming Constitutions is the right of cross-examination. Downing, 2011 WY 113,
¶ 11, 259 P.3d at 368. However, the admission of out-of-court statements does not
violate the Confrontation Clause if they are not testimonial. See Bush, 2008 WY 108,
¶ 39, 193 P.3d at 213.

[¶27] In Crawford v. Washington, the United States Supreme Court held that the Sixth
Amendment’s Confrontation Clause requires a trial court to exclude hearsay that is
testimonial in nature unless the declarant is unavailable and the defendant has had an
earlier opportunity to cross-examine the witness. 541 U.S. 36, 68, 124 S.Ct. 1354, 1374,
158 L.Ed.2d 177 (2004). Central to the issue in the instant case, Crawford provided
instruction on the criterion in determining whether an out-of-court statement is
“testimonial”:

Testimony, in turn, is typically [a] solemn declaration or
affirmation made for the purpose of establishing or proving
some fact. An accuser who makes a formal statement to
government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not. The
constitutional text, like the history underlying the common-
law right of confrontation, thus reflects an especially acute
concern with a specific type of out-of-court statement.

Various formulations of this core class of testimonial
statements exist: 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

11
 under circumstances which would lead an objective witness
reasonably to believe that the statement would be available
for use at a later trial. These formulations all share a common
nucleus and then define the Clause’s coverage at various
levels of abstraction around it. Regardless of the precise
articulation, some statements qualify under any definition—
for example, ex parte testimony at a preliminary hearing.

Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364 (citations and quotations omitted).
Although providing general guidance on what statements are considered testimonial for
purposes of the Confrontation Clause, the Supreme Court chose to “leave for another day
any effort to spell out a comprehensive definition of ‘testimonial.’” Id. at 68, 124 S.Ct. at
1374.

[¶28] Since Crawford, the nation’s highest court has produced a “steady stream” of
cases concerning this difficult issue. Williams v. Illinois, --- U.S. ---, 132 S.Ct. 2221,
2232, 183 L.Ed.2d 89 (2012); Bullcoming v. New Mexico, --- U.S. ---, 131 S.Ct. 2705,
180 L.Ed.2d 610 (2011); Michigan v. Bryant, --- U.S. ---, 131 S.Ct. 1143, 179 L.Ed.2d 93
(2011); Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314
(2009); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
Three of these decisions have dealt with scientific reports and experts, which guide us to
our conclusion today.

[¶29] In Melendez–Diaz, the Supreme Court declined to create an exception to Crawford
for a forensic laboratory report that was specifically created to be evidence in the criminal
proceeding. 557 U.S. at 309, 129 S.Ct. at 2531. At issue was the admission into
evidence of laboratory certificates of analysis detailing the results of a forensic analysis
conducted on the alleged drugs seized. Id. There, the defendant was charged with
distributing and trafficking and the prosecution introduced what was determined to be
cocaine. To prove the substance was cocaine, the prosecution introduced, and trial court
admitted into evidence, three certificates of analysis from the state forensic laboratory
stating the substance had been “examined with the following results: The substance was
found to contain: Cocaine.” Id. at 308, 129 S.Ct. at 2531 (citations and quotations
omitted).

[¶30] When the case finally arrived before the Supreme Court, it held these certificates
were testimonial and their admission into evidence ran afoul of the Sixth Amendment.
The certificates were executed under oath before a notary and were created for “the sole
purpose of providing evidence against a defendant.” Id. at 323, 129 S.Ct. at 2539.
Accordingly, it did not hesitate to characterize the certificates as affidavits and stressed
that their introduction to prove the nature of the substance equated to “live, in-court
testimony” on that critical fact and that the certificates did “precisely what a witness does
on direct examination.” Id. at 311, 129 S.Ct. 2532. Succinctly put by the Supreme

12
Court, the “sole purpose of the affidavits [under applicable state law] was to provide
prima facie evidence of the composition, quality, and the net weight of the analyzed
substance.” Id. (citations and internal quotation marks omitted). Thus, the Supreme
Court concluded that under Crawford, the analyst’s affidavit-esque certificates “were
testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth
Amendment.” Id. at 311, 129 S.Ct. at 2532. The court made clear, however, that

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. . . . . Additionally, documents prepared in the regular
course of equipment maintenance may well qualify as
nontestimonial records.

Id. at 311 n.1, 129 S.Ct. at 2532 n.1 (emphasis added).

[¶31] In Bullcoming v. New Mexico, the court reaffirmed that forensic reports “created
specifically to serve as evidence in a criminal proceeding” are testimonial. 131 S.Ct. at
2709. It again held that such a report could not be used substantively unless the analyst
who prepared and certified the report was subject to confrontation. There, the defendant
rear-ended another vehicle and left the scene before the police arrived. Id. at 2710. Soon
thereafter he was apprehended by a police officer, failed the field sobriety tests and
refused to take a breath test. Id. The defendant was arrested for driving a vehicle under
the influence of alcohol and a warrant was obtained to perform a BAC blood test. A
sample of the defendant’s blood was drawn and sent to the New Mexico Department of
Health, Scientific Laboratory Division (SLD), for testing. Id. An SLD forensic analyst
tested the defendant’s blood, recorded the results of the test, and certified that he had
followed all procedures listed on the BAC report.8 Id.

[¶32] At trial, the central piece of evidence used to convict the defendant of aggravated
DWI was the forensic report certifying the defendant’s BAC. However, the prosecution
did not call the analyst who signed and certified the report; rather, it called another
analyst who “was familiar with the laboratory’s testing procedures, but had neither
participated in nor observed the test on [the defendant’s] blood sample.”9 Id. at 2709.
Over the defendant’s objection that the introduction of the BAC report without the
certifying analyst’s testimony would violate his confrontation right, the trial court
admitted the report under the business records hearsay exception and permitted the other
analyst to testify. Id. at 2710.

8
The appellant’s BAC was 0.21, well over New Mexico’s threshold of 0.16 for aggravated DWI.
9
The State did not contend the certifying analyst was unavailable.

13
[¶33] Upon review by the United States Supreme Court, it held “that surrogate
testimony of that order does not meet the constitutional requirement[,]” and “[t]he
accused’s right is to be confronted with the analyst who made the certification . . . .” Id.
at 2710. It explained:

In all material respects, the laboratory report in this
case resembles those in Melendez–Diaz. Here, as in
Melendez–Diaz, a law-enforcement officer provided seized
evidence to a state laboratory required by law to assist in
police investigations. Like the analysts in Melendez–Diaz,
[the analyst] tested the evidence and prepared a certificate
concerning the result of his analysis. Like the Melendez–Diaz
certificate, [the certificate at issue] is “formalized” in a signed
document . . . .

In sum, the formalities attending the “report of blood
alcohol analysis” are more than adequate to qualify [the
analyst’s] assertions as testimonial.

Id. at 2717 (citations omitted).

[¶34] Most recently, in Williams v. Illinois, the Supreme Court again revisited the
Confrontation Clause, this time to determine the “constitutionality of allowing an expert
witness to discuss others’ testimonial statements if those statements are not themselves
admitted as evidence.” 132 S.Ct. at 2223. A plurality opinion by Justice Alito, joined by
Chief Justice Roberts, Justice Kennedy, and Justice Breyer, determined the defendant’s
confrontation clause rights were not violated when the State’s DNA expert testified, in a
bench trial, to an opinion based on a report prepared by a non-testifying analyst. 10 Id. Its
reasoning was twofold.

[¶35] First, the court found the report fell outside of the scope of the Confrontation
Clause because it was not used for the truth of the matter asserted. The court highlighted
that “[i]t has long been accepted that an expert witness may voice an opinion based on
facts concerning the events at issue in a particular case even if the expert lacks first-hand
knowledge of those facts.” Id. at 2233. Under the applicable state and federal
evidentiary rules, “an expert may base an opinion on facts that are ‘made known to
the expert at or before the hearing,’” even if those facts themselves are inadmissible.
Id. at 2234 (citation omitted). The court held “it is clear that the putatively offending

10
The defendant had argued the State’s expert “went astray when she referred to the DNA profile
provided by [a third party company] as having been produced from semen found on the victim’s vaginal
swabs,” Id. at 2227, even though she did not conduct or observe any of the work [the third party
company] had done in deducing a male DNA profile. Id. at 2230.

14
phrase . . . was not admissible for the purpose of proving the truth of the matter asserted,”
and “[t]here is no reason to think that the trier of fact [i.e., the judge] took [such
testimony] as substantive evidence to establish where the DNA profiles came from.” Id.
at 2236. It concluded that there had been no confrontation clause violation because
additional evidence also established the origin of the DNA profile, and the trial court
presumably did not consider the evidence for its truth. Id. at 2240. Contrasting
Bullcoming and Melendez–Diaz, where there was no question that the test results were
offered for their truth, the court found the report was offered “only for the distinctive and
limited purpose of seeing whether it matched something else.” Id. at 2240 (citation and
internal quotation marks omitted).

[¶36] Second, the court held no confrontation clause violation occurred because the
report was non-testimonial. It explained that “[t]he abuses that the Court has identified as
prompting the adoption of the Confrontation Clause shared the following two
characteristics: (a) they involved out-of-court statements having the primary purpose of
accusing a targeted individual of engaging in criminal conduct and (b) they involved
formalized statements such as affidavits, depositions, prior testimony, or confessions.”
Id. at 2242. Accordingly, the court found the third party laboratory’s report was

very different from the sort of extrajudicial statements, such
as affidavits, depositions, prior testimony, and confessions,
that the Confrontation Clause was originally understood to
reach. The report was produced before any suspect was
identified. The report was sought not for the purpose of
obtaining evidence to be used against petitioner, who was not
even under suspicion at the time, but for the purpose of
finding a rapist who was on the loose.

Id. at 2228. Thus, the report did not violate the Confrontation Clause, because its
purposes were not of the same type that the clause was designed to protect against. Id.
Justice Thomas concurred solely in the judgment and did not concur with the test used by
the plurality. Id. at 2255 (Thomas, J., concurring). Rather, he determined the report was
non-testimonial because it “lack[ed] the solemnity of an affidavit” and “was not the
product of any sort of formalized dialogue resembling custodial interrogation.” Id. at
2260.

[¶37] We acknowledge there was no single basis in Williams garnering the support of a
majority of the Justices. As a result, “[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as the position taken by those Members who concurred in the
judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97
S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (citation and internal quotation marks omitted).
The narrowest ground for the court’s disposition in Williams is that of the lead opinion

15
and Justice Thomas: the subject report was not testimonial. But, as the Arizona Supreme
Court recently explained, “[n]either the plurality’s ‘primary purpose’ test nor Justice
Thomas’s solemnity standard can be deemed a subset of the other; therefore, there is no
binding rule for determining when reports are testimonial.” State v. Medina, 306 P.3d 48,
63 (Ariz. 2013) (citing United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d
Cir. 2003) (holding that when no “single standard . . . legitimately constitutes the
narrowest ground for a decision on that issue, there is then no law of the land”)). We
agree, and apply Williams accordingly.

[¶38] Acquainted with the law of the land, we now turn to the third prong of the test for
plain error. Based upon the United States Supreme Court’s precedent concerning the
Confrontation Clause, we find the testimony of the State’s expert, Moore, concerning the
annual certification prepared and signed by Kent, is not a clear and obvious transgression
of controlling law. We arrive at this conclusion based solely on whether the annual
certification is testimonial.11 Regardless of which of the narrowest rationales is applied,
the plurality’s or Justice Thomas’, the result is the same: the annual certification at issue
in the instant case is not testimonial.

[¶39] The primary purpose of Kent’s annual certification of the Intoximteter EC/IR II’s
functionality and accuracy simply is to comply with the legislative certification
requirements for quality assurance of all chemical tests:

(a) Chemical analysis of the person’s blood, breath or urine
to be considered valid under this section, shall be performed
according to methods approved by the department of health
and by an individual possessing a valid permit to conduct the
analysis. Permits shall be issued by the department of health
for this purpose. The department of health may promulgate
and approve satisfactory methods in order to ascertain the
qualifications of individuals permitted to conduct the analysis
and shall issue to qualified individuals permits which are
subject to termination or revocation by the department of
health.

Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2013). The annual certification is wholly
different from the kind of extrajudicial statements the Confrontation Clause was
understood to encompass.

11
The State argues Moore’s expert testimony concerning the annual certification signed by Kent complies
with the plurality of Williams’ first ground—that the laboratory report there was offered as basis
evidence, and not for its truth. We need not address this argument, however, because the annual
certification at issue here is not testimonial.

16
[¶40] The annual certification was not created because of the appellant’s case. Kent
would have prepared the annual certification even if the appellant had decided not to
drink and drive on that fateful day. Indeed, the annual certification was prepared several
months after the appellant’s tests were administered.12 An annual certification is to
comply with Wyoming’s rules and regulations, which require the Department of Health
to certify the accuracy of breathalyzer machines, regardless of whether law enforcement
utilizes them or whether they become an issue in a case. Such compliance certifications
are part of a quality assurance program, not for accusing a targeted individual of
engaging in criminal conduct. In accordance with the Williams’ plurality, the primary
purpose of the annual certification, viewed objectively, is not to accuse a specified
individual—the appellant. See Williams, 132 S.Ct. at 2243 (“We look for the primary
purpose that a reasonable person would have ascribed to the statement, taking into
account all of the surrounding circumstances.”). Furthermore, annual certifications
regarding the accuracy of breathalyzer machines lack the requisite formality and
solemnity to be considered testimonial for purposes of the Confrontation Clause.13 See
id. at 2255 (Thomas, J., concurring).

[¶41] Additionally, we note that unlike Melendez–Diaz and Bullcoming, where the
Supreme Court concluded the results of the tests were testimonial because they were
completed “for the purpose of establishing or proving some fact at trial,” Melendez–Diaz,
557 U.S. at 324, 129 S.Ct. at 2540, or were “affirmation[s] made for the purpose of
establishing or proving some fact in a criminal proceeding,” Bullcoming, 131 S.Ct. at
2716 (citation and internal quotation marks omitted), in the instant case Kent’s annual
certification cannot prove an element of, or serve as prima facie evidence of, any crime in
Wyoming. It only is relevant to the routine maintenance performed to check the general
accuracy of the testing device. See Melendez, 557 U.S. at 311 n.1, 129 S.Ct. at 2532
n.1 (“[W]e do not hold . . . that anyone whose testimony may be relevant in establishing
the . . . accuracy of the testing device, must appear in person as part of the prosecution’s
case. . . . Additionally, documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records.”).

[¶42] In sum, we find the annual certification prepared by Kent is not testimonial for
purposes of the Confrontation Clause. Therefore no error, much less plain error, occurred
in allowing Moore to briefly testify about it, even though Moore did not conduct that
annual certification himself.

12
The previous annual certification was also included in the Litigation Support Package, which was
prepared by Moore the year before.
13
Justice Thomas determined the report in Williams not testimonial as it was “neither a sworn nor a
certified declaration of fact” and “it was not the product of any sort of formalized dialogue resembling
custodial interrogation.” Williams, 132 S.Ct. at 2260 (Thomas, J., concurring). Similarly, here, the
annual certification details the annual accuracy checks conducted on the machine and is simply signed by
the person conducting the accuracy check.

17
 Was the appellant’s trial counsel ineffective in not calling
an expert witness to testify as to the effect of diabetes
on the results of a breath alcohol test?

[¶43] The appellant argues his trial counsel was ineffective by failing to call an expert to
explain the effect the appellant’s diabetes could have on the results of his BAC breath
tests. He contends that his diabetes provides “a valid legal defense that his blood alcohol
level was not actually above the statutorily prohibited level, but appeared at an elevated
amount as the Intoximeter registered an inaccurate reading due to [his] medical
condition.”

[¶44] The two-part test to determine counsel’s effectiveness is well established. We
recently explained:

To prevail on a claim of ineffective assistance of
counsel, a defendant must first establish that trial counsel’s
performance was deficient. This requires a showing that
counsel failed to render such assistance as would have been
offered by a reasonably competent attorney. Assuming a
sufficient showing that counsel performed deficiently, a
defendant must also prove the deficient performance
prejudiced the defense. That is, a defendant must show a
reasonable probability exists that, but for counsel’s deficient
performance, the outcome would have been different. In
order to prevail on an ineffectiveness claim, a defendant must
prove both deficient performance and prejudice. The failure
to make the required showing of either deficient performance
or prejudice will result in a finding that counsel was not
ineffective.

Counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary. When an ineffective assistance
claim is based upon the failure to call an expert witness, the
defendant must show an expert was available who would
have testified consistently with his theory. However, upon
making a showing that counsel did not reasonably investigate
or unreasonably failed to call an expert witness, a defendant
still must show that the deficient performance prejudiced him.

Osborne v. State, 2012 WY 123, ¶¶ 19-20, 285 P.3d 248, 252 (Wyo. 2012) (citations
omitted). We have also referenced the following standard in examining counsel’s
performance:

18
 Standard 4-5.2 Control and Direction of the Case

(a) Certain decisions relating to the conduct of the
case are ultimately for the accused and others are
ultimately for defense counsel. The decisions
which are to be made by the accused after full
consultation with counsel include:

(i) what pleas to enter;

(ii) whether to accept a plea agreement;

(iii) whether to waive jury trial;

(iv) whether to testify in his or her own
behalf; and

(v) whether to appeal.

(b) Strategic and tactical decisions should be
made by defense counsel after consultation with the
client where feasible and appropriate. Such
decisions include what witnesses to call, whether
and how to conduct cross-examination, what jurors
to accept or strike, what trial motions should be
made, and what evidence should be introduced.

(c) If a disagreement on significant matters of
tactics or strategy arises between defense counsel
and the client, defense counsel should make a
record of the circumstances, counsel’s advice and
reasons, and the conclusion reached. The record
should be made in a manner which protects the
confidentiality of the lawyer-client relationship.

ABA Standards for Criminal Justice, Prosecution Function
and Defense Function (3rd ed. 1993).

Grainey v. State, 997 P.2d 1035, 1040-41 (Wyo. 2000).

19
[¶45] Here, the record indicates that trial counsel conducted an investigation into this
matter, given the identification in a pretrial pleading of the appellant’s potential expert
witness, Citron. Citron was noticed to testify on several topics, including the following:

Dr. Citron is expected to testify that the limited discovery
provided by the State concerning [the appellant’s] breath test
result to date is not sufficient to determine to reasonable
degree of scientific certainty if the machine is working
properly. However, based on such factors as the 0.020
margin of tolerance/error allowed for [the appellant’s] two (2)
breath samples under the Wyoming Department of Health’s
rules and regulations, as well as [the appellant’s] inherent
physical attributes such as body temperature, partition ration
as expressed by the State created definition of alcohol
concentration for breath of 2100:1; and, [the appellant’s]
diabetic condition: it is more probable than not that [the
appellant’s] breath test result is not accurate and valid and can
be off as much as .07%.

At first blush it might appear the appellant’s diabetes could have provided a viable
defense, but a closer review supports trial counsel’s strategy not to call Citron.

[¶46] The appellant contends the ketones in his body could possibly have caused falsely
high blood-alcohol readings. However, the facts belie his claim. The appellant has type
2 diabetes. This type of diabetes is not usually associated with ketoacidosis. See
A.D.A.M. Medical Encyclopedia, Type 2 Diabetes, available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0010129/ (last visited January 16,
2014). Rather, ketoacidosis usually comes about in people with type 1 diabetes, who are
insulin dependent. Id. Ketoacidosis occurs when ketones, a form of acid, build up in
one’s body due to insufficient insulin. See A.D.A.M. Medical Encyclopedia, Diabetic
Ketoacidosis, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001363 (last
visited January 16, 2014). If ketoacidosis develops, the diabetic person may experience a
myriad of symptoms including dry-mouth or fruity breath odor, and keytones on the
breath could theoretically register as ethyl alcohol on BAC breath tests. Brick, Diabetes,
Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and
Driving (1993). In Michaels v. State ex rel. Dep’t of Transp., the defendant, a type 1
diabetic, claimed his blood-alcohol levels may have been affected by ketoacidosis. 2012
WY 33, ¶ 8, 271 P.3d 1003, 1006 (Wyo. 2012). There, we also noted the attributes of
ketoacidosis:

20
[¶47] Diabetic ketoacidosis is described as follows:

People with type 1 diabetes do not have enough insulin, a
hormone the body uses to break down sugar (glucose) in the
blood for energy. When glucose is not available, fat is broken
down instead.

As fats are broken down, acids called ketones build up in the
blood and urine. In high levels, ketones are poisonous. This
condition is known as ketoacidosis.

Blood glucose levels rise (usually higher than 300 mg/dL)
because the liver makes glucose to try to combat the problem.
However the cells cannot pull in that glucose without insulin.
Diabetic ketoacidosis is often the first sign of type 1 diabetes
in people who do not yet have other symptoms. It can also
occur in someone who has already been diagnosed with type
1 diabetes. Infection, injury, a serious illness, or surgery can
lead to diabetic ketoacidosis in people with type 1 diabetes.
Missing doses of insulin can also lead to ketoacidosis in
people with diabetes.

Symptoms can include: deep, rapid breathing, dry skin and mouth,
flushed face, fruity smelling breath, decreased consciousness, and
dulled senses.

http://medlineplus.gov.

Id. at 271 P.3d at 1006, ¶ 8 n.2. In the instant case, the type 2 diabetic appellant did not
experience any of these symptoms.

[¶48] We have undertaken a thorough review of the appellant’s brief, the record, and the
applicable law. Regardless of the appellant’s post hoc argument on appeal, trial counsel
is required to be careful and competent, but not prescient. Based upon the dearth of
predicate facts required to mount such a diabetic defense, his trial counsel’s tactic not to
call Citron did not fall below objectively reasonable standards of attorney performance
considering the circumstances of this case and the extant law. See Lopez v. State, 2004
WY 28, ¶¶ 27-35, 86 P.3d 851, 860-61 (Wyo. 2004).

CONCLUSION

[¶49] Finding no error, we affirm the appellant’s conviction for felony driving while
under the influence of alcohol.

21