Certiorari Denied, September 15, 2010, Docket No. 32,559
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-092
Filing Date: July 20, 2010
Docket No. 26,811
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PHILBERT NEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Grant L. Foutz, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Stephanie Erin Brunson, Assistant Appellate Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
SUTIN, Judge.
{1} This case comes to us on remand from our Supreme Court in State v. Nez, No. 31,703
for further consideration in light of State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487,
226 P.3d 1, and State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280. See Order
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of Remand and Mandate, State v. Nez, No. 31,703, entered March 2, 2010. We note at the
outset that Bullcoming overruled one aspect of the decision in State v. Dedman, 2004-
NMSC-037, 136 N.M. 561, 102 P.3d 628, as we discuss in more detail later in this opinion.
In this Court’s memorandum opinion filed in the present case on April 20, 2009, which was
the subject of the certiorari proceeding in the Supreme Court from which the foregoing
remand emanated, we upheld the admission of a blood-alcohol-content (BAC) report based
on the precedent set in Dedman. State v. Nez, No. 26,811, slip op. at 23-27 (Ct. App. Apr.
20, 2009). We address on remand whether Bullcoming or Aragon change our conclusion in
the memorandum opinion that the district court did not err by admitting the report into
evidence.
{2} To set the stage, we first discuss Dedman, and we then discuss Defendant’s
arguments on appeal in the present case and the decision contained in our memorandum
opinion. Following that, we discuss Bullcoming (and only touch on Aragon), which
necessarily includes discussion of Melendez-Diaz v. Massachusetts, ___ U.S. __, 129 S. Ct.
2527 (2009). We then return to the present case, focusing on Defendant’s arguments and the
evidence specifically on the issue at hand, namely whether the district court abused its
discretion in admitting the BAC report where, Defendant argued, the State failed to present
non-hearsay testimony sufficient to establish the method used to draw his blood and the
qualifications of the blood drawer. We conclude our discussion with our holding that neither
Bullcoming nor Aragon overruled Dedman on this particular issue and that, under Dedman,
as well as under Bullcoming, under the facts in the present case the report was properly
admitted into evidence. We also discuss Defendant’s argument that his Sixth Amendment
confrontation right was denied because he did not have an opportunity to cross-examine the
person who drew his blood. We conclude that Defendant’s confrontation right was not
violated by the absence of the blood drawer from trial.
Dedman
{3} In Dedman, the prosecution contended that a veni-puncture method used to draw a
blood sample ultimately tested for BAC “did not affect the admissibility of the blood alcohol
report” and also that the unavailability of the nurse who drew the blood sample to testify at
trial did not require the exclusion of the report on Sixth Amendment confrontation grounds.
2004-NMSC-037, ¶ 1. The Court determined that the failure to comply with a regulation
setting out the veni-puncture requirement did not render the test results wholly unreliable
and did not justify exclusion of the report. Id. ¶ 21. The Court also determined that the
report qualified as a public record, that the report was prepared in a non-adversarial setting
and was not investigative or prosecutorial, and that the report was admissible under the
public record exception to the hearsay rule. Id. ¶ 24. Noting that the right of confrontation
required “an independent inquiry that is not satisfied by a determination that evidence is
admissible under a hearsay exception,” id. ¶ 25, the Court explored whether the defendant’s
confrontation right was violated. Id. ¶¶ 26-36. The Court held that the report was not
testimonial evidence under Crawford v. Washington, 541 U.S. 36 (2004). Dedman, 2004-
NMSC-037, ¶ 30. The Court also held that the testimony of the toxicologist who prepared
the report and of the officer in whose presence the blood was drawn “provided sufficient
foundation for [the] admission of the report and that [the] lack of opportunity to cross-
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examine the nurse who drew the sample did not violate [the d]efendant’s confrontation
rights.” Id. ¶¶ 1, 30, 45.
Defendant’s Arguments on Appeal and Our Memorandum Opinion
{4} In the present case, Defendant argued on appeal that the district court erred in
admitting a report that contained the results of a test of a sample of his blood in that the State
failed to show that the blood was properly drawn under the Implied Consent Act and
Department of Health regulations by a qualified person. Nez, No. 26,811, slip op. at 23.
Defendant further argued that the report constituted impermissible hearsay that violated the
Confrontation Clause because the drawer of the blood was not present at trial and Defendant
did not have an opportunity to cross-examine that person about her qualifications and the
manner in which the blood sample was taken. Id. We noted in our memorandum opinion
that, in Dedman, our Supreme Court held that the absence of the blood drawer from trial and
the lack of testimony from the blood drawer as to the method in which he or she drew the
blood did not affect the admissibility of the report. Nez, No. 26,811, slip op. at 24; see
Dedman, 2004-NMSC-037, ¶¶ 4-5. We also noted that our Supreme Court had implicitly
rejected an argument such as Defendant is making in the present case, that Defendant’s
challenges were controlled by Dedman, and that we were bound to follow Dedman. Nez,
No. 26,811, slip op. at 24; see Dedman, 2004-NMSC-037, ¶ 21. We further noted that in
Dedman the Court held that the report was admissible under the public records exception to
the hearsay prohibition and did not constitute testimonial evidence, and we concluded, “[a]s
did the Dedman Court, . . . that Defendant’s right of confrontation provided no basis for
exclusion of the . . . report.” Nez, No. 26,811, slip op. at 27 (internal quotation marks and
citation omitted); see Dedman, 2004-NMSC-037, ¶¶ 24, 30, 45.
Bullcoming and Melendez-Diaz
{5} Based on Melendez-Diaz, in Bullcoming and Aragon our Supreme Court held that
crime laboratory reports of blood-alcohol test results (Bullcoming) and chemical forensic
reports of a substance determined to be methamphetamine (Aragon) were testimonial for the
purposes of the Confrontation Clause. Bullcoming, 2010-NMSC-007, ¶¶ 1, 13-16, 18;
Aragon, 2010-NMSC-008, ¶¶ 4, 6-9. The question at hand was then whether a defendant’s
right to confrontation was violated when the prosecution admitted the reports through the
testimony of an analyst who did not personally perform the testing or analysis required and
performed to obtain the test results in the reports. See Bullcoming, 2010-NMSC-007, ¶¶ 1,
19-20; Aragon, 2010-NMSC-008, ¶¶ 23-33. The two cases indicate that, under certain
circumstances, an analyst who is not the testing analyst but who testifies under Rule 11-703
NMRA based upon the underlying data in a report and not on opinion or analysis of another
analyst may testify in order to admit the report. See Bullcoming, 2010-NMSC-007, ¶¶ 23-
25; Aragon, 2010-NMSC-008, ¶¶ 23-25.
{6} For our purposes on remand, only Bullcoming, which overruled Dedman, is pertinent.
See Bullcoming, 2010-NMSC-007, ¶¶ 1, 16. In Bullcoming, the prosecution introduced a
blood-alcohol report that contained chromatograph-machine-generated results of the
defendant’s BAC, and it also contained chain of custody information in part identifying the
person who drew the blood and the date, time, and place of the blood draw. Id. ¶¶ 1, 6, 8,
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21. The report was admitted through the testimony of an analyst of the State Laboratory
Division (SLD) who was not the testing analyst. Id. ¶¶ 1, 6-9. The nurse who drew the
blood and the officer who observed the blood draw and also prepared and sent the blood kit
to SLD testified at trial and were available for cross-examination. Id. ¶ 8. The report was
admitted in evidence pursuant to the business-records exception to the hearsay rule. Id. ¶
9; see Rule 11-803(F), (H) NMRA. In analyzing the issue of the admissibility of the report,
our Supreme Court in Bullcoming addressed Melendez-Diaz, which had been decided after
Dedman and before Bullcoming. Bullcoming, 2010-NMSC-007, ¶¶ 13-20.
{7} In Melendez-Diaz, the prosecution submitted sworn certificates that the Court
considered to be affidavits showing the results of forensic analysis establishing a substance’s
composition as cocaine. 129 S. Ct. at 2532; Bullcoming, 2010-NMSC-007, ¶ 13. The Court
held the affidavits were testimonial under Crawford. Melendez-Diaz, 129 S. Ct. at 2532.
Justice Scalia’s opinion for the majority explained that, under Crawford, affidavits were a
core class of testimonial statements subject to analysis under the Confrontation Clause, the
analysts’ sworn statements were affidavits, and, as such, the analyst affiants were witnesses
for purposes of the Sixth Amendment and thus subject to confrontation. Melendez-Diaz, 129
S. Ct. at 2531-32; Bullcoming, 2010-NMSC-007, ¶ 13.
{8} Further, the Court in Melendez-Diaz stated that “[a]bsent a showing that the analysts
were unavailable to testify at trial and that petitioner had a prior opportunity to cross-
examine them, petitioner was entitled to be confronted with the analysts at trial.” 129 S. Ct.
at 2532 (internal quotation marks omitted). However, the Court did not extend its decision
to encompass individuals who are merely involved in the chain of custody, stating, “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.” Id. at 2532 n.1; Bullcoming, 2010-
NMSC-007, ¶ 21. The dissent in Melendez-Diaz noted and the majority agreed that the
prosecution has the obligation to establish the chain of custody, but that did “not mean that
everyone who laid hands on the evidence must be called.” 129 S. Ct. at 2532 n.1, 2546
(Kennedy, J., dissenting); Bullcoming, 2010-NMSC-007, ¶ 21.
{9} Based on Melendez-Diaz, the Court in Bullcoming held that the blood-alcohol report
in the case was testimonial and overruled Dedman’s holding that laboratory reports were
non-testimonial. Bullcoming, 2010-NMSC-007, ¶¶ 12, 16, 18. The Court in Bullcoming
nevertheless also held that the defendant’s confrontation right was satisfied through cross-
examination of the testifying analyst who was not the analyst who prepared the report
because the report-preparing analyst had simply transcribed the results generated by the gas
chromatograph machine to the report, had not exercised any independent judgment, and was
nothing more than a “mere scrivener.” Id. ¶ 19. The “true accuser,” the Court stated, was
not the analyst who transcribed the results into the report, but rather the machine that
“detected the presence of alcohol in [the d]efendant’s blood, assessed [the d]efendant’s
BAC, and generated a computer print-out listing its results.” Id. Thus, the Court
determined, “the live, in-court testimony of a separate qualified analyst [was] sufficient to
fulfill a defendant’s right to confrontation.” Id.
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{10} Recognizing that the report also contained information regarding chain of custody,
the Court in Bullcoming referred to Melendez-Diaz’s footnote regarding chain of custody
evidence and the confrontation right, and the Court in Bullcoming stated that Melendez-Diaz
“indicated that chain of custody information may not be testimonial under the Confrontation
Clause.” Bullcoming, 2010-NMSC-007, ¶ 21; see Melendez-Diaz, 129 S. Ct. at 2532 n.1.
The Court did not, however, pursue the Melendez-Diaz “indicated” chain of custody result
further. Instead, because in Bullcoming the defendant had the opportunity to cross-examine
the officer who arrested him and the nurse who drew his blood, and also because the record
reflected that the defendant was willing to stipulate that the nurse drew the blood properly,
the Court held that “[t]o the extent that [the d]efendant based his Confrontation Clause claim
on the chain of custody information contained in [the report], it is clear that his objection was
simply pro forma.” 2010-NMSC-007, ¶ 22.
Defendant’s Arguments and the Evidence
{11} In the present case, Defendant argued on appeal that our Supreme Court’s
Dedman decision “was premised on an unproven assumption, nowhere mentioned in the
record proper of that case, that it was in fact a nurse, or another meeting [NMSA 1978,
Section 66-8-103 (1978)]’s express requirements, who drew the defendant’s blood on the
occasion in question.” Defendant noted that in cases prior to Dedman the Court had
indulged in no such assumptions. Defendant argued that in the present case neither the
officer nor the toxicologist who testified “was qualified to testify as to the manner in which
the blood was drawn or to verify the accuracy with which the blood[ ]drawer obtained the
blood sample.” He argued further that “[t]here was no testimony regarding the identity of
the blood[ ]drawer that was not hearsay and absolutely no testimony regarding the person’s
qualifications or whether the dual purposes of safety and reliability were met.”
{12} In short, Defendant’s position was that the State did not present any non-hearsay
testimony sufficient to establish the method used to draw blood and the qualifications of the
blood drawer and, therefore, the district court abused its discretion in admitting the report.
More specifically, Defendant argued that the State failed to lay the necessary foundation to
show compliance with Section 66-8-103 which reads, in part, that “[o]nly a physician,
licensed professional or practical nurse or laboratory technician or technologist employed
by a hospital or physician shall withdraw blood from any person in the performance of a
blood-alcohol test.” Defendant also argued that the State did not show as required by the
law and regulations that the blood samples were collected “in the presence of the arresting
officer or other responsible person who can authenticate the samples,” and “within two hours
of arrest” and not using “[e]thyl alcohol . . . as a skin antiseptic,” and preserving the sample
in “an SLD-approved blood collection kit [that contains] two or more sterile tubes with
sufficient sodium fluoride so that the final concentration shall contain not less than 1.0
percent sodium fluoride.” 7.33.2.12 NMAC (2/21/01), reprinted as amended in
7.33.2.15(A)(1), (2), (3) NMAC (4/30/10).
{13} At trial in the present case, Sergeant Kendall, a deputy with the McKinley County,
New Mexico, Sheriff’s Department testified as follows. The deputy investigated the vehicle
crash in which Defendant was involved. One aspect of the investigation involved
Defendant’s suspected intoxicated status and a possible vehicular homicide. Deputy Kendall
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obtained a search warrant to extract Defendant’s blood. The blood was extracted at the
Gallup, New Mexico, Indian Medical Center. The blood draw had to be done by a medical
person. The deputy had an unused blood kit prepared for this purpose by the SLD. He also
had a form that went with the blood kit titled “Report of Blood Alcohol Analysis.” Deputy
Kendall observed Defendant’s blood being drawn in the emergency room by medical
personnel, namely, a nurse. He identified the completed report form, which contained his
signature. The nurse also signed the report form as “Jolene Richardson, R.N.” Deputy
Kendall testified that based upon his training and experience, “R.N.” is the abbreviation for
“registered nurse.” Although he had not previously met the blood drawer, and although he
did not have knowledge whether the blood drawer was licensed, Deputy Kendall testified
to having no concern at all that this person may have been impersonating a nurse and
observed that the nurse was appropriately dressed, had a stethoscope, and displayed from her
uniform a Gallup Indian Medical Center identification tag which included her picture, name,
and title. In drawing the blood, the nurse used the contents of the SLD-provided kit,
including a non-alcohol based swab to clean the arm prior to the blood extraction. After the
nurse inserted the needle into Defendant’s vein, she attached the first SLD-provided vacuum
tube to the needle that drew out a sample of Defendant’s blood, handed that tube directly to
Deputy Kendall, and then obtained another sample in the second SLD-provided vacuum
tube, which was also handed directly to the deputy. Deputy Kendall labeled and sealed the
two vials of blood and mailed the form and the kit containing the blood samples to the SLD.
Our Conclusions
{14} We hold that the foregoing evidence relating to the the blood drawer’s identity and
qualification and to the manner of drawing the blood satisfied the State’s foundation burden
for admission of the report sufficient to withstand Defendant’s objection to admission of the
report based on his view that the testimony did not establish the propriety of the blood draw
and the qualification of the blood drawer. See Dedman, 2004-NMSC-037, ¶¶ 1, 21, 30, 45
(holding that compliance with a particular blood-sample collection regulatory requirement
was not a prerequisite to the admissibility of the blood-alcohol report and that the testimony
of the toxicologist who prepared the report and of the officer in whose presence the blood
was drawn provided sufficient foundation for admission of the report), overruled on other
grounds by Bullcoming, 2010-NMSC-007, ¶¶ 1, 16, 18. We therefore see no basis on which
to hold that the report was inadmissible unless under Bullcoming it was inadmissible on
confrontation grounds. See Dedman, 2004-NMSC-037, ¶ 25 (“The right of confrontation
requires an independent inquiry that is not satisfied by a determination that evidence is
admissible under a hearsay exception.”), overruled on other grounds by Bullcoming, 2010-
NMSC-007, ¶¶ 1, 12, 16, 18.
{15} On the confrontation issue, in the present case a forensic toxicologist was qualified
as an expert and testified that he received the kit containing Defendant’s blood, he checked
the seals to assure they had not been tampered with, he tested Defendant’s BAC using a gas
chromatograph, and he prepared his report. He also testified that Defendant’s blood sample
came in a standard SLD blood kit, he checked the identifications on the specimen against the
Report of Blood Alcohol Analysis form, and he identified the blood-drawer’s signature on
the form as “Jolene Richardson, R.N.” and her employer “GIMC.” He further testified as
to the recording of the results of the lab tests “via the computer and the gas chromatograph”
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after which “a reviewer . . . reviews all the work [to] be sure that everything—all the criteria
[have] been met.” In addition, he testified that the results were placed on the form, and he
signed off on the form as an analyst for SLD. The toxicologist was thus available to be
cross-examined regarding the operation of the testing machine and the SLD’s procedures.
Defendant did not challenge the toxicologist’s testimony. Nor does Defendant attack
admission of the report on confrontation grounds based on the absence at trial of any SLD
analyst.
{16} Under Bullcoming, a defendant’s confrontation right is not violated and a blood-
alcohol report of the results of a machine-tested blood sample may be admitted where an
otherwise qualified analyst testifies to the machine’s blood-test results that are recorded or
transcribed by a testing analyst who acts merely as a scrivener. See 2010-NMSC-007, ¶¶ 1,
19. Once, as here, the State has satisfied the blood-drawer qualification and blood-draw
method foundation requirements for admission of the test results, we see no basis on which
to deny admission of the blood-alcohol report on confrontation grounds because the blood
drawer is not present at trial to be cross-examined. After blood-drawer qualification and
blood-draw procedure foundational requirements are out of the way, the need to cross-
examine the blood drawer is reduced to questions of the chain of custody. As we read
Melendez-Diaz and Bullcoming’s reference to the Melendez-Diaz footnote, the absence of
the blood drawer from trial and opportunity for a defendant to cross-examine the blood
drawer relating to chain of custody does not provide grounds for a confrontation objection
to the admissibility of a blood-alcohol report.
CONCLUSION
{17} We hold that Bullcoming does not change our conclusion in our April 20, 2009,
memorandum opinion that the district court did not err by admitting the report of the test
results of Defendant’s BAC into evidence. We therefore see no basis on which to change
or overrule, and we affirm, this Court’s ultimate disposition in our April 20, 2009,
memorandum opinion, reversing Defendant’s DWI conviction and remanding it to the
district court with instructions to vacate Defendant’s conviction for DWI on double jeopardy
grounds and affirming Defendant’s remaining convictions.
{18} IT IS SO ORDERED.
____________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
____________________________________
CYNTHIA A. FRY, Chief Judge
____________________________________
JAMES J. WECHSLER, Judge
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Topic Index for State v. Nez, Docket No. 26,811
CT CONSTITUTIONAL LAW
CT-CT Confrontation
EV EVIDENCE
EV-AE Admissibility of Evidence
EV-BT Blood/Breath Tests
EV-CC Chain of Custody
EV-HR Hearsay Evidence
GV GOVERNMENT
GV-IA Implied Consent Act
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