How To Prove That A Blood Alcohol Test Is Correct

Transcription

1 IN THE SUPREME COURT STATE OF ARIZONA STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, vs. Petitioner/Appellee, THE HONORABLE RONALD KARP, Justice of the Peace Pro Tempore, WEST MESA JUSTICE COURT, Arizona Supreme Court No. CV PR Court of Appeals Division One No. 1 CA-CV Maricopa County Superior Court No. LC Respondent Judge/ Appellee, MATTHEW VORIS, Real Party in Interest/Appellant BRIEF OF AMICUS CURIAE ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE FILED IN SUPPORT OF REAL PARTY IN INTEREST MATTHEW VORIS NESCI & ST. LOUIS KOPLOW LAW FIRM /s/ Joseph P. St. Louis Joseph P. St. Louis 216 North Main Avenue Tucson, Arizona Counsel for Amici Curiae /s/ Lawrence S. Koplow Lawrence S. Koplow 201 North Central Avenue, 33 rd Floor Phoenix, Arizona Counsel for Amici Curiae

2 TABLE OF CONTENTS I. TABLE OF AUTHORITIES. ii II. INTRODUCTION.. 1 III. INTERESTS OF AMICUS CURIAE... 1 IV. SUMMARY OF ARGUMENT. 2 V. STATEMENT OF FACTS... 5 VI. ARGUMENTS... 9 A. Reason This Court Should Grant Review... 9 B. It Is Impossible To Make An Independent Determination That A Particular Person Had A Particular Blood Alcohol Concentration Based Upon The Paperwork Generated By The Laboratory s Software System C. This Court s Ruling Allowing A Witness To Testify To An Opinion Based Upon Another Individual s Autopsy Report and Accompanying Photographs Does Not Apply to Blood Test Results, Because They Are Testimonial In Nature... D. The Prosecution Failed To Meet Its Burden Of Proving Ms. Kogler (The Non-Testifying Witness) Was Unavailable And That There Was A Prior Opportunity For Cross-Examination. Thus, Ms. Valdez s Surrogate Testimony Is Barred VII. CONCLUSION ii

3 TABLE OF AUTHORITIES CASES Barber v. Page, 390 U.S. 719, (1968). 35 Bullcoming v. New Mexico, 564 U.S.,131 S. Ct. 2705, 2711, (2011)... 1, 2, 3, 14, 27 State v. Ceja, 113 Ariz. 39, 41, 546 P.2d 6, 8 (1976) 10 Crawford v. Washington, 541 U.S. 36, 68 (2004) 9, 35 Maryland v. Craig, 497 U.S. 836, 845 (1990) 9 State v. Archie, 171 Ariz. 415, 417, 831 P.2d 414, 416 (Ct. App. 1992) State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983) 1, 5, 35, 36, 37 State v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995) 38 State v. Joseph, 230 Ariz. 296, 283 P.3d 27 (2012) 4, 8, 23, 26, 30, 33 State ex rel. Montgomery v. Karp, 236 Ariz. 120, 336 P.3d 753, 757 (Ct. App. 2014) 26 State v. Medina, 178 Ariz. 570, 576, 875 P.2d 803, 809 (1994) 37 State v. Montano, 204 Ariz. 413, , 65 P.3d 61, (2003)... 35, 38 Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 360, 701 P.2d 851, 856 (App. 1985)... 3 iii

4 Valuenzuela v. State, 30 Ariz. 458, 248 P. 36 (1926) Williams v. Illinois, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012)... 28, 29, 31, 34 STATUTES A.R.S , Uniform Act to Secure the Attendance of Witnesses. 37 LEGAL TREATISES Kenneth S. Broun, McCormick on Evidence (Sixth ed. 2006) 36 SCIENTIFIC TREATISES Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed. 2006)... 3 iv

5 I. INTRODUCTION This case is another chapter in the ongoing struggle to define the legal boundaries imposed by the Confrontation Clause of 6 th Amendment to the United States Constitution when the prosecution attempts to use surrogate forensic testimony. However, the Amici Curiae submit that this particular chapter has already been written, and the issues were resolved by the United States Supreme Court s decision Bullcoming v. New Mexico. 1 Here, as was the case in Bullcoming, the prosecution seeks to provide surrogate testimony by a person lacking essential information, making her incapable of providing an independent measurement. In addition, the Appellate Court s decision fails to recognize Arizona s firmly established constitutional prerequisite for allowing substitute testimony the State proving a witness unavailability after specific and genuine efforts to obtain that individual s presence. 2 II. INTERESTS OF AMICUS CURIAE Amicus curiae Arizona Attorneys for Criminal Justice is a statewide not-for-profit membership organization of criminal defense lawyers, law students, and associated professionals dedicated to protecting the rights of 1 Bullcoming v. New Mexico, 564 U.S.,131 S. Ct. 2705, 2711, 180 L. Ed. 2d 610 (2011). 2 See State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983). 2 See State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983). 1

6 the accused in the courts and in the legislature, promoting excellence in the practice of criminal law through education, training and mutual assistance, and fostering public awareness of citizens' rights, the criminal justice system, and the role of the defense lawyer. Amicus offers this brief in support of the Real Party in Interest Voris because the issue presented touches the core of their shared mission to defend and preserve individual liberties guaranteed by the United States and Arizona Constitutions. III. SUMMARY OF ARGUMENTS An analyst who is not involved in the process of creating a blood alcohol measurement has inadequate information to make an independent conclusion, when merely provided the paperwork generated by laboratory s software. 3 The reliability of any blood alcohol concentration estimate is entirely dependent on the actions taken by the individual measuring the blood concentration. Errors affecting the accuracy of blood test results can 3 Bullcoming, 131 S. Ct. 2705, 2711 (2011). 2

7 be introduced (intentionally or through carelessness) in every step in the process. 4 A surrogate witness (such as Ms. Valdez) who took no part in the actual measurement, who is merely reviewing the documents associated with it, has no way of independently verifying that the printed records are correct. Ms. Kogler s (the analyst who performed the measurement) documentation does not provide what specific steps she followed when conducting the measurement at issue. Thus, at trial, the Court, the Jury, and Mr. Voris will have no insight as to what steps Ms. Kogler actually utilized 5 in her measurement. Ms. Kogler s documentation does not inform us as to whether she actually understood the testing protocol, followed it, or what subjective judgments she made in producing this measurement. 4 Bullcoming, supra, 131 S. Ct. at 2711, n. 1 ( Several steps are involved in the gas chromatograph process, and human error can occur at each step; In order to perform quantitative analyses satisfactorily and... support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why. Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed.2006). See also McNair 137 ( Errors that occur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps. ); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests 16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples ). 5 See generally Transamerica Ins. Co. v. Trout, 145 Ariz. 355, , 701 P.2d 851, (App. 1985)(holding for purposes of hearsay unavailability that a witness was not qualified because [n]ot knowing how the reports were made, he could not be subjected to meaningful cross-examination. Id. 3

8 The State s surrogate witness, Ms. Valdez, speaking in Ms. Kogler s place, has assumed quality assurance, adequate attention, impartiality and sound scientific judgment were all employed in this analysis. These assumptions, however, do not satisfy the Confrontation Clause. Accordingly, there is no independent evidence to confirm the original measuring analyst s result, such as the photos included with the autopsy report in State v. Joseph. 6 In addition, the blood alcohol measurement produced by the nontestifying analyst [Kogler] is purely testimonial. The purpose of Ms. Kogler s analysis was to provide a blood alcohol measurement for use in prosecuting Mr. Voris. The measurement serves no other purpose. In this manner, her work is the equivalent of an affidavit made for the purpose of proving the guilt of Mr. Voris at a trial. Ms. Kogler, as member of the Scottsdale Crime Laboratory obviously realized that her work (a reported blood-alcohol level over a statutory limit) would be used solely for the Ariz. 296, 298, 10, 283 P.3d 27, 29 (2012). 4

9 purpose of Mr. Voris prosecution. Consequently, her work is the definition of a testimonial statement. The underlying record also demonstrates that the prosecution failed to meet its burden of proving the non-testifying witness [Kogler] was truly unavailable. In the absence of a prior opportunity for cross-examination, as was the case here, Arizona law requires much more than the mere avowal that a witness is no longer working in a crime lab to permit substitute testimony during a jury trial. 7 IV. STATEMENT OF FACTS 1. Real Party in Interest Matthew Voris was arrested on suspicion of Driving Under the Influence on January 15, The matter was a misdemeanor and proceeded through a court of limited jurisdiction. 2. Scottsdale Police toxicologist Lynette Kogler analyzed the blood on January 28, 2010 and prepared a report detailing her findings A jury trial was eventually scheduled for April 5, Less than a day before the jury trial was set to begin, over three (3) years after the blood was drawn, the State filed a motion asking that a different analyst (Jennifer Valdez) be permitted to testify to the report prepared by Ms. Kogler (who actually performed the blood alcohol measurement) See Edwards, 136 Ariz. 177, (1983). 8 R.T., Motion Hearing, , P. 22, ln 13-21, P. 36, ln R.T., Motion Hearing, , P R.T., Motion Hearing, , P. 7, ln 4 P. 17, ln 7. 5

10 5. Petitioner objected on the grounds that testimony by surrogate analyst would violate his right to Confrontation pursuant to the 6 th Amendment of the United States Constitution At a pretrial hearing, the State presented the testimony of Jennifer Valdez in support of their position that she be permitted to present the measurement conducted by Ms. Kogler. Ms. Valdez testified, inter alia: a. Ms. Kogler been gone from the lab for two-and-a-half, almost three years because she is in graduate school in another state. 12 b. My responsibility is to oversee the procedure. I often oversaw individual blood runs. In this particular case, I was not the technical reviewer of this case. Another analyst did that. 13 c. The only verification that the protocol is followed is her signature upon the completion that verifies that she has followed the procedure correctly, but there is no specific checklist. 14 d. Ms. Valdez s testimony was based on the following documentation i. Forensic Blood Alcohol Phase Sheet 15 ii. Ms. Kogler's Notes 16 iii. Final Report 17 iv. Chromatograms 18 v. QA Document The court asked Ms. Valdez a series of questions relating the facts and data she was relying upon for her opinions: 11 R.T., Motion Hearing, , P. 12, ln 19 P. 13, ln R.T., Motion Hearing, , P. 27, ln R.T., Motion Hearing, , P. 28, ln R.T., Motion Hearing, , P. 29, ln R.T., Motion Hearing, , P. 30, ln R.T., Motion Hearing, , P. 35, ln R.T., Motion Hearing, , P. 36, ln R.T., Motion Hearing, , P. 38, ln R.T., Motion Hearing, , P. 41, ln 22 P. 42, ln 18. 6

11 Did you see the way that the seals were or were not broken prior to gas chromatograph being used on the vials? I have no recall of that. 20 Do you have any idea how long Ms. Kogler was running the batch, start time, end time, anything like that? I can obtain that information from looking at the documents, but I do not recall. And, again, from personal memory and I'm just going through a variety of things -- do you have any idea how many vials were in the batch? Again, I can obtain that from the paperwork, but, no, I was not present. Not personal memory? No. And do you have any personal memory of whether there were any problems with any other vials in that batch? I have no personal knowledge of that. 21 **** Are there other documents that you have looked at in preparation for today's case? I have looked only at the quality assurance packet and the chromatograms and notes for this individual. 22 So did Ms. Kogler make some notes about the -- her work in running this? Does she have any personal notes that you looked at? 20 R.T., Motion Hearing, , P. 33, ln R.T., Motion Hearing, , p. 33, ln 22 34, ln R.T., Motion Hearing, , p. 34, ln 24 p. 35, ln 3. 7

12 She took notes of the packaging of the item and the labeling of the item and the estimation of the volume of the blood. That is what I have reviewed for this. 23 **** And do you have any way of knowing when this document was prepared? For example, I see a date that says January 26th on it. Does that date tell me anything? That is probably the date of the of the analysis request, not the date the job -- the document was actually generated. The document isn't completed until the analyst actually finalizes their signature on it. And that would be the date also that the report is generated The trial court held that the substitute witness would not be permitted to testify because it would be a violation of the confrontation clause. 25 The trial court reasoned, inter alia, that: a) So I'm going to make a finding for these case facts that Ms. Kogler was not available to the Defense, had been -- had resigned from the Scottsdale lab in order to pursue her graduate studies and the like. And, therefore, that Defense could not have some meaningful opportunity for an examination of her. b) I'm going to find that State v. Joseph, however, is distinguishable. 26 What I'm finding is that the blood test and the blood test results are different than an autopsy report. 27 c) the State realized that a witness was not available, and that was as early as the summer of they've had from that time period until now, which is about two-and-a-half 23 R.T., Motion Hearing, , p. 35, ln R.T., Motion Hearing, , P. 36, ln R.T., Motion Hearing, , P. 58, ln R.T., Motion Hearing, , P. 55, ln R.T., Motion Hearing, , P. 56, ln

13 years, to --I'm using the word fix because, I guess, I'm not more verbal than that -- fix the problem by rerunning the vial with an analyst who is in place. 28 V. ARGUMENTS A. Reason This Court Should Grant Review. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. 29 The Confrontation Clause requires that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. 30 As the United States Supreme Court determined in Bullcoming, allowing the prosecution to present evidence through a surrogate witness prevents such a meaningful cross-examination. Here, the Court of Appeals has created a rule, which permits the State to bypass any meaningful challenge to their evidence in contrast to Arizona s long history barring experts from simply providing surrogate 28 R.T., Motion Hearing, , P. 58, ln 25 p. 59, ln Maryland v. Craig, 497 U.S. 836, 845 (1990). 30 Crawford v. Washington, 541 U.S. 36, 61 (2004). 9

14 testimony. 31 If left in place, the Appellate Court s ruling would enable a system where one forensic witness could be used to hide the negligence or wrongdoing of their colleagues. Such a system would eliminate the protections guaranteed by the Confrontation Clause of the 6 th Amendment. B. It Is Impossible To Make An Independent Determination That A Particular Person Had A Particular Blood Alcohol Concentration Based Upon The Paperwork Generated By The Laboratory s Software System. In Bullcoming v. New Mexico 32, the United States Supreme Court held that before the results of a blood test may be admitted into evidence, the analyst who performed the testing must be made available for crossexamination. The Court rejected the notion that [Bullcoming s] right of confrontation was preserved by the state calling an individual qualified as an expert witness with respect to the gas chromatograph machine who did not perform the testing at issue for live, in-court testimony, and, thus, was available for cross-examination regarding the operation of the... machine, the results of [Bullcoming s] BAC test, and the [testing laboratory s] established laboratory procedures. Id., 131 S. Ct. at See State v. Ceja, 113 Ariz. 39, 41, 546 P.2d 6, 8 (1976)(Arizona Supreme Court granted a new trial because trial court permitted the prosecution s witness (from the City of Phoenix Crime Laboratory) to testify that another employee, of the crime laboratory, made certain ballistic comparisons of bullets from two guns known to have been in appellant's possession and with bullets found at the scene of the crime.) U.S.,131 S. Ct. 2705, 2711, 180 L. Ed. 2d 610 (2011). 10

15 (quoting State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1, 9-10 (2010)). It is not enough to call a witness, the Court held. The witness called must be the individual who performed the blood test, or the results are inadmissible. This holding was based, in part, on the nature of a blood test report. Any blood test report contains representations about actions taken by the analyst, which require that she be made available for cross-examination before the results may be admitted into evidence: [The analyst who performed the testing, in his blood test report,] certified that he received Bullcoming s blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number correspond[ed], and that he performed on Bullcoming s sample a particular test, adhering to a precise protocol. He further represented, by leaving the [r]emarks section of the report blank, that no circumstance or condition... affect[ed] the integrity of the sample or... the validity of the analysis. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for crossexamination. Id., 131 S. Ct. at It is clear that the blood test report prepared by Ms. Kogler is: A document created solely for an evidentiary purpose, Melendez Diaz clarified, made in aid of a police investigation, [which] ranks as testimonial. 557 U.S., at, 129 S.Ct., at 2532 (forensic reports available for use at trial are testimonial statements and certifying analyst is a witness for purposes of the Sixth Amendment ). 11

16 Id, 131 S. Ct. at In the case at hand, the state seeks to perform an end-run around the Supreme Court s holding in Bullcoming. They are attempting to admit the actual and exact blood test result obtained by Ms. Kogler (the absent analyst who performed the test). They are asking be allowed to have Ms. Valdez, an analyst who did not perform the testing at issue, and who was not present when the testing occurred, testify to an independent expert opinion that Mr. Voris blood alcohol concentration is the same value Ms. Kogler obtained. They then wish to introduce Ms. Kogler s test result itself, by having Ms. Valdez testify to that reported value, not because the value is correct and accurate, but because it is the basis of Ms. Valdez s independent expert opinion. It matters greatly then, whether the documents available actually allow one to make an independent determination that a particular person has a particular blood alcohol concentration. Here, they do not, and the proffered testimony is improper surrogate testimony regarding the testing analyst s work, without fulfilling the state s requirement to produce the testing analyst for cross-examination. To determine whether Ms. Valdez may testify, this Court must first determine whether any analyst is capable of forming an independent opinion 12

17 that a specific person (Mr. Voris) had a specific alcohol concentration from the paperwork generated by the laboratory s software system. To make this determination, the Court must decide whether the information available allows for the exercise of independent judgment, or limits a reviewing witness to accepting and repeating the test results from the analyst who actually performed the testing at issue. If the witness is limited to accepting and repeating the previous analyst s work, and is not making an independent judgment, then she merely serves as a surrogate for the absent analyst, and her testimony is not permissible. That is the situation before the Court herein. The primary flaw with the Court of Appeals decision is the judges premise that someone who works in a crime laboratory, who did not analyze the tests samples and who was not present when testing was performed, is capable of looking at paperwork printed out by the laboratory s software system at an earlier point in time, and forming an independent opinion that the printed document demonstrates a particular alcohol concentration for a particular individual. As recognized by the United States Supreme Court in Bullcoming v. New Mexico, supra, no one can do that. By their nature, the documents being reviewed are incapable of demonstrating that the samples being tested were prepared properly, that what is purported to be the result 13

18 of the testing of Mr. Voris blood is actually a test of his blood, or that the software is correctly printing out the information the name, the vial number, or even the result obtained. The reliability and accuracy of any blood alcohol concentration estimate is entirely dependent on the actions taken by the individual analyzing the blood when she creates the sample that is tested. Errors affecting the accuracy of blood test results can be introduced (intentionally or through carelessness) in every step in the process. 33 The measurement process utilizes a type of production line chemistry batch processing. Batch processing, is a version of assembly line production where things are produced in groups. In a typical blood alcohol analysis, a full batch will usually require the analyst to process in excess of 90 vials. At some point, days, weeks or even months after they have been collected, the analyst receives a number of blood kits, each of which generally contains two gray-topped tubes of blood that were purportedly collected from an arrestee. As she processes this group of blood samples, the analyst will take notes (pictured below) regarding the contents of each blood kit, attempting to repeat the information recorded by the arresting law 33 Bullcoming, supra, 131 S. Ct. at 2711 ( Several steps are involved in the gas chromatograph process, and human error can occur at each step. ) 14

19 enforcement agency, and describing the contents of the box. There is no double check by a different person, to ensure that the testing analyst has entered the correct information for the correct sample. The analyst then prepares a run sheet, in which she attempts to correctly enter information into the computer as to which samples will be placed into which slots on the loading tray called a carousel which holds up to 110 samples. For example, she would type into the computer information that Mr. Voris s blood samples will be located in particular location on the carousel, e.g., slots 52 and

20 The analyst then prepares the 90 plus samples for testing. For each arrestee being tested, she opens one of the grey-topped tubes from the blood kit, and pours a portion of the blood into a vial. From this first vial, she must then measure out the correct amount of blood into a second vial, called a headspace vial (pictured below), which is the vial actually being tested. When preparing the headspace vials, the analyst also must dispense the correct measure of a second liquid, an internal standard, used in every sample tested, into the headspace vial. If the amount of blood dispensed into the headspace vial is incorrect, or the amount of internal standard dispensed into the headspace vial is incorrect, the alcohol concentration reported will be incorrect. Bullcoming v. New Mexico, supra, 131 S. Ct. 2711, n. 1 (citations omitted). (In Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span [by using] improper amounts of the internal standard, causing the chromatograph 16

21 machine systematically to inflate BAC measurements. The analyst s error, a supervisor said, was fairly complex. ). Whether the headspace vials tested in a particular defendant s case contained the correct amounts of both liquids cannot be ascertained by reviewing the paper records from a single blood run after the fact; the errors in the Colorado laboratory were not discovered until three years after the fact, when two of the analysts failed proficiency tests, by testing samples prepared by an outside agency. 34 When preparing the headspace vials, the analyst handwrites a portion of the arresting law enforcement agency s case number (or perhaps the entire case number), onto the side of the glass vial with a sharpie. This is the only indication of which blood sample is in which vial on the carousel. Once all of the headspace vials have been prepared, the analyst must place them into the correct slots in the carousel (pictured below) designated on the run sheet. No second individual double-checks the placement of the vials to ensure that they were placed in the correct slots. 34 Id. ( police discuss.html). 17

22 Once the headspace vials have all been loaded into the carousel, each vial in turn is heated until a gas is formed from the liquids in the headspace vial. A sample of this gas is then injected into the gas chromatograph through an autosampler, which, when it functions correctly, will inject samples from the headspace vials into the gas chromatograph in sequential order. The process is automated because testing all of the samples in a blood run may take up to 12 hours. The analyst does not observe the equipment during the testing; in fact, no one does, as blood runs typically end well after all employees have left the crime lab. After a sample is injected into the gas chromatograph, it is split in half, and each half of the gas travels through one of two separate tubes, called columns. At the end of each column is a flame ionization detector, 18

23 which burns the gas coming through the column. When organic solvents (such as, e.g., ethyl alcohol, isopropanol or toluene) burn in the flame ionization detector, the computer system attached to the gas chromatograph records the time that the solvent burned, and measures the voltage produced. The laboratory s Laboratory Information Management System processes this information through software programs, such as JusticeTrax, and a graph of the test, called a chromatogram (pictured below), is printed. 19

24 Similar graphs are printed for the samples used to calibrate the gas chromatograph at the beginning of the blood run (calibrators), the controls (samples containing a known range of values) tested during the run, a negative control, including just the internal standard (the blank), and a vial containing a number of substances chemically similar to ethanol (these graphs are collectively, along with documentation on the calibrators and controls, is referred to as a quality control packet ). 20

25 When the paper records are read by the analyst, usually on the next work day, she attempts to correctly record the values obtained in a summary sheet called an Alcohol Face Sheet (pictured below). The headspace vials, with the information written on their sides indicating which sample is contained in which slot of the carousel, are then 21

26 discarded without a second individual double checking that the vials were placed in the slots that the analyst believes they were placed into. The accuracy of the printed results of the blood testing performed is entirely dependent on the vials being correctly placed into the slots the analyst has told the computer that they would be inserted into. If an analyst tells the computer that vials 52 and 53 are the blood samples that come from Mr. Voris, the gas chromatograph will report those samples as having his case number, that is, as being his blood tests results, whether or not his blood samples are actually in vials 54 and 55. There is no way to read a printout from the laboratory s software and independently determine that a particular chromatogram reflects the alcohol concentration of a particular person. The only way to reach this conclusion is to take it on faith that the analyst, Ms. Kogler, correctly labeled the vials that were tested, and placed them into the carousel in the correct sequence that the contents of vials 52 and 53, really do contain Mr. Voris s blood. No one, including Jennifer Valdez, possesses the ability to look at what was printed out by the computer and determine that the unknown samples were placed where they were supposed to be placed, or which vials (if any) contained Mr. Voris blood. 22

27 The issue herein is compounded by the Scottsdale Crime Laboratory s ongoing difficulties with the accuracy and reliability of their printed blood test results. On February 14, 2013, Jennifer Valdez, the analyst at issue herein and the lab s former technical leader, wrote to Perkin-Elmer, the manufacturer of the gas chromatographs used in Scottsdale, and asked their software engineers to create new software for the Scottsdale laboratory, because, since the installation of the gas chromatograph used to test Mr. Voris blood in 2009, the lab has a software program that does not always print the data correctly. It will sometimes print wrong file information or vial numbers. The new software was requested because the lab cannot fix it when it has issues. ( df, at p. 15). As a result of these software issues, there is no way to determine after the fact that the printed records are accurate. A second analyst has no way of independently verifying that the printed records are correct there is no independent evidence that may be used to confirm the analyst s opinion, such as the photos included with the autopsy report in State v. Joseph, 230 Ariz. 296, 298, 10, 283 P.3d 27, 29 (2012). If one cannot determine that the written records are accurate, one cannot use those 23

28 documents to form an independent opinion that a specific person has a specific blood alcohol concentration. Once the chromatograms have been printed out, the information they contain is transferred to a second summary document, a report that repeats the information from the notes and chromatograms (pictured below). Administrative and technical reviews are performed to ensure that, among other things, all of the names and numbers are reproduced identically to the information contained in the notes and on the chromatograms; any differences in names or numbers are changed prior to the report being released. The administrative and technical reviews are reviews of the paperwork only. 24

29 No one can review the printed chromatograms and determine that the blood samples being tested were correctly created, placed in the correct sequence, and that the results were accurately reported by the lab s software system. This fact was lost on the Court of Appeals, who takes it as a given that the print-outs from the blood testing equipment allow anyone who works or who has worked in a laboratory to make an accurate independent determination of an individual s true blood alcohol concentration, by reviewing the paperwork. 25

30 Also, like the autopsy report in Joseph, the GC notes and reports here are the product of objective, computer-generated data and do not require subjective analysis. See State v. Fields, 196 Ariz. 580, , 2 P.3d 670, (App.1999) (describing the gas chromatography method and explaining how the resulting ratios from the computer-generated graphs reveal concentrations of substances in the blood). 35 In the case at hand, Ms. Valdez indicated that she had looked only at the quality control packet and chromatograms and notes for this individual. 36 As demonstrated above, these documents do not allow an independent determination that the correct blood sample has been reported, that the measurement being reported is accurate, or that the information was printed correctly by the laboratory s software system. The idea that there is no subjective analysis required to review that accuracy of blood test results was expressly rejected by the United States Supreme Court in Bullcoming. Although the State presented testimony that obtaining an accurate BAC measurement merely entails look[ing] at the [gas chromatograph] machine and record[ing] the results, App. 54, authoritative sources reveal that the matter is not so simple or certain. In order to perform quantitative analyses satisfactorily and... support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why. Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed.2006). See also McNair 137 ( Errors that occur in any step can invalidate the best 35 State ex rel. Montgomery v. Karp, 236 Ariz. 120, 336 P.3d 753, 757 (Ct. App. 2014). 36 (RT April 5, 2013, at p. 35, lines 1-3). 26

31 chromatographic analysis, so attention must be paid to all steps. ); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests 16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples). 37 The Arizona Supreme Court has similarly held that a substitute witness may not testify to the result of a breath test administered by an individual not present at trial. The Court held that merely using the paper records generated would not establish that the individual administering the test followed approved procedures in obtaining the test result. State ex rel. McDougall v. Johnson, 181 Ariz. 404, 409, 891 P.2d 871, 876 (App. 1994). In holding that an analyst may testify to her opinion regarding cold-hit DNA results that come from the testing of another analyst, the United States Supreme Court took pains to explain why this was not permissible with blood test results: In Bullcoming, we held that another scientific report could not be used as substantive evidence against the defendant unless the analyst who prepared and certified the report was subject to confrontation. The defendant in that case had been convicted of driving while intoxicated. At trial, the court admitted into evidence a forensic report certifying that a sample of the defendant s blood had an alcohol concentration of 0.21 grams per hundred milliliters, well above the legal limit. Instead of calling the analyst who signed and certified the forensic report, the prosecution called another analyst who had not performed 37 Bullcoming v. New Mexico, supra, 131 S. Ct. at 2711, n

32 or observed the actual analysis, but was only familiar with the general testing procedures of the laboratory. The Court declined to accept this surrogate testimony, despite the fact that the testifying analyst was a knowledgeable representative of the laboratory who could explain the lab s processes and the details of the report. 564 U.S., at, 131 S.Ct., at 2723 (KENNEDY, J., dissenting). The Court stated simply: The accused s right is to be confronted with the analyst who made the certification. Id., at, 131 S.Ct., at Secondly, there is nothing within the contents of the printed documents that demonstrates: 1) that the required protocols were followed; or, 2) that the measurement printed was correctly made; or, 3) that the document itself describes the test result of a blood sample taken from a particular defendant. This distinguishes blood test results obtained from documents such as coldhit DNA results which the United States Supreme Court has held may form the basis of the opinion of a testifying analyst who did not perform any testing. This match also provided strong circumstantial evidence regarding the reliability of Cellmark s work. Assuming (for the reasons discussed above) that the Cellmark profile was based on the semen on the vaginal swabs, how could shoddy or dishonest work in the Cellmark lab have resulted in the production of a DNA profile that just so happened to match petitioner s? If the semen found on the vaginal swabs was not petitioner s and thus had an entirely different DNA profile, how could sloppy work in the Cellmark lab have transformed that entirely different profile into one that matched petitioner s? And without access to any other sample of petitioner s DNA 38 Williams v. Illinois, 132 S. Ct. 2221, 2233, 183 L. Ed. 2d 89 (2012) 28

33 (and recall that petitioner was not even under suspicion at this time), how could a dishonest lab technician have substituted petitioner s DNA profile? Under the circumstances of this case, it was surely permissible for the trier of fact to infer that the odds of any of this were exceedingly low. 39 Here, the only information that uniquely identifies a particular blood test result as coming from a particular individual, is a printed case number. If the testing analyst mistakenly, carelessly or with evil intentions believed that she was placing the blood samples for, e.g., case number into the slots for vials 52 and 53, but really placed the vials from case number into those slots, the results of someone else s blood test will be reported as belonging to the defendant on trial, and no one will ever be able to discern the error by reviewing the printed records. If the incorrect amount of blood or the internal standard was placed into the blood samples that were actually tested, an incorrect blood test result will be reported, and no one will ever be able to discern the error by reviewing the printed records. If the laboratory software system mislabels the vial or misprints the results, an incorrect blood test result will be reported, and no one will ever be able to discern the error by reviewing the printed records after the fact, rather than the. 39 Williams v. Illinois, 132 S. Ct. 2221, 2239, 183 L. Ed. 2d 89 (2012). 29

34 The documents printed by the lab s software system limit anyone reviewing that paperwork to taking it on faith that the sample reported was correctly prepared and analyzed, that the software correctly printed out the results, and that the reported results represent the blood that came from a particular individual. A testifying analyst can do nothing more than repeat the printed result, and the defendant is prevented from cross-examining the witness called against him as to what was done to obtain that result. The testifying witness can testify only to how the testing was supposed to be performed, and as to whether the paperwork appears to be in order. She can t testify as to what was actually done, because she doesn t know she wasn t there. Because of these limitations, it was error for the Court of Appeals to hold that the State is allowed to present Ms. Kogler s blood test result through the testimony of Jennifer Valdez, and that holding must be reversed. C. This Court s Ruling Allowing A Witness To Testify To An Opinion Based Upon Another Individual s Autopsy Report And Accompanying Photographs Does Not Apply to Blood Test Results, Because They Are Testimonial In Nature. In State v. Joseph, 230 Ariz. 296, 283 P.3d 27 (2012), this Court allowed a medical examiner who had not performed the autopsy or examined the decedent to provide unspecified testimony and opinions formed after reviewing facts and photographs contained in the report 30

35 prepared by a medical examiner who did not testify at trial. 230 Ariz. at , 10, 283 P.3d. at This Court held that the conclusions of the medical examiner that prepared the report could be admitted through the testifying witness, without the individual who actually performed the autopsy being subjected to crossexamination. This Court held that the conclusions of the out-of-court declarant were being admitted to show the basis of [the testifying expert s] opinion and not to prove their truth, and that when this occurs an expert does not admit hearsay or violate the Confrontation Clause by revealing the substance of a non-testifying expert s opinion Ariz. at 8 (quoting State v. Tucker, 215 Ariz. 298, , 160 P.3d 177, 194 (2007)). As Justice Kagan has observed, five justices of the United States Supreme Court have rejected this rationale; when a witness testifies to the results of work performed by a non-testifying witness, that evidence is introduced to establish the truth of the matter asserted, and the defendant s right to confrontation is violated when that occurs without the defendant having the opportunity to cross-examine the individual who actually performed the work that resulted in the results being reported to the jury. Williams v. Illinois, 132 S. Ct. 2221, 2268, 183 L. Ed. 2d 89 (2012) (Kagan, J. dissenting). [W]hen a witness, expert or otherwise, repeats an out-of-court statement as the basis for a conclusion[ ]the statement s utility is then dependent on its truth. If the statement is true, then the conclusion based on it is probably true; if not, not. So to determine the validity of the witness s conclusion, the factfinder must assess the truth of the out-ofcourt statement on which it relies. That is why the principal modern treatise on evidence variously calls the idea that such basis evidence comes in not for its truth, but only to help the factfinder evaluate an expert s opinion very weak, factually implausible, nonsense, and sheer fiction. D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence , pp (2d ed.2011); id., , at 24 (Supp.2012). One can sympathize, notes that treatise, with a court s desire to permit the disclosure of basis evidence that is quite probably reliable, such as a routine analysis of a drug, but to pretend that it is not being introduced for the truth of its contents strains credibility. Id., , at 198 (2d ed.2011); see also, e.g., People v. Goldstein, 6 N.Y.3d 119, 128, 810 N.Y.S.2d 100, 843 N.E.2d 727, (2005) ( The distinction between a statement offered for its truth and a statement offered to shed light on an expert s opinion is not meaningful ). Unlike in Street, admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do 31

36 In Williams v. Illinois, 132 S. Ct. 2221, 2268, 183 L. Ed. 2d 89 (2012), the United States Supreme Court allowed the admission of the results of the work of a non-testifying witness (DNA test results) as the basis of a testifying witness s opinion in a bench trial, but took pains to point out that a jury trial requires a different calculus. [If] petitioner had elected to have a jury trial [ ] there would have been a danger of the jury s taking Lambatos testimony as proof that the Cellmark profile was derived from the sample obtained from the victim s vaginal swabs. Absent an evaluation of the risk of juror confusion and careful jury instructions, the testimony could not have gone to the jury.this case, however, involves a bench trial and we must assume that the trial judge understood that the portion of Lambatos testimony to which the dissent objects was not admissible to prove the truth of the matter asserted. 41 In addition to considering the audience to whom the testimony was being admitted, the Court concluded that the admission of the results of the cold hit DNA profile at issue in Williams was non-testimonial because of the nature of the report itself. In Melendez Diaz and Bullcoming, the Court held that the particular forensic reports at issue qualified as testimonial statements, but the Court did not hold that all forensic reports fall into the same category. Introduction of the reports in those cases ran afoul of the Confrontation Clause because they were nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress. 132 S. Ct. at (Kagan, J. dissenting) (emphasis in original; footnote omitted) S. Ct. at (emphasis added; italics in original; footnote omitted). 32

37 the equivalent of affidavits made for the purpose of proving the guilt of a particular criminal defendant at trial. In addition, the technicians who prepared the reports must have realized that their contents (which reported an elevated blood-alcohol level and the presence of an illegal drug) would be incriminating.the Cellmark report is very different. It plainly was not prepared for the primary purpose of accusing a targeted individual. 132 S. Ct. at This is what makes preclusion of a second analyst s opinion based upon blood testing performed by someone else inescapable, whether the report of that testing is admitted into evidence or not. Ms. Kogler performed testing specifically to be used against Mr. Voris at trial, and put the results of that testing into a report. The State simply seeks to have another analyst who wasn t present read those results into evidence, under the guise of being the support for her independent determination that Mr. Voris has the exact BAC result Ms. Kogler obtained, while preventing the accused from being able to cross-examine the actual analyst about how the testing was performed and whether and which errors occurred during testing. Finally, it bears noting that the holding of the Joseph case survives the preclusion of Ms. Valdez from testifying in this case. The United States Supreme Court specifically held that under the newly-articulated particular 33

38 purpose test, an autopsy report is non-testimonial because it is not directed at producing evidence to be used against any particular individual. 42 Autopsies, like the DNA report in this case, are often conducted when it is not yet clear whether there is a particular suspect or whether the facts found in the autopsy will ultimately prove relevant in a criminal trial. Autopsies are typically conducted soon after death. 43 The trial Court was correct in holding that blood test results are different than autopsy reports. Autopsy reports are non-testimonial under the United States Supreme Court s primary purpose test, and another witness may testify to those findings without violating the Confrontation Clause. Blood test results are prepared to be used against a particular defendant. They are testimonial, triggering a defendant s right to confront the witness who actually performed the testing, or to have the results precluded. The results may not be introduced either through the admission of a physical document or through the testimony of a surrogate witness. 42 Although, as Justice Kagan notes: That test lacks any grounding in constitutional text, in history, or in logic. 132 S. Ct. at In Melendez Diaz, we held that [t]he text of the [Sixth] Amendment contemplates two classes of witnesses those against the defendant and those in his favor. 557 U.S., at , 129 S.Ct We emphasized that there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. Id., at 314, 129 S.Ct Thus, the distinction between those who make inherently inculpatory statements and those who make other statements that are merely helpful to the prosecution has no foundation in the text of the Amendment. Id., at Williams v. Illinois, supra, 132 S. Ct. at 2251 (Breyer, J. concurring). 34

39 A trial judge may be able to differentiate between test results being introduced to demonstrate the basis of an expert opinion and test results being introduced to prove the truth of the matter asserted therein, but there is no reason to think that a jury would be able to do so, and every reason to believe they would not be able to do so. For all of these reasons, the Court of Appeals decision must be reversed. D. The Prosecution Failed To Meet Its Burden Of Proving Ms. Kogler (The Non-Testifying Witness) Was Unavailable And That There Was A Prior Opportunity For Cross-Examination. Thus, Ms. Valdez s Surrogate Testimony Is Barred. The testimony of an absent witness may only be considered after a finding that the witness is unavailable and there was a prior opportunity for cross-examination. 44 Unavailability is a term of art. Arizona courts have held that a witness is unavailable pursuant to the Sixth Amendment if the government made good faith efforts to obtain her presence at trial. 45 Moreover, the prosecution always bears the burden of proving that their witness is unavailable Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). There appears to have been some confusion in the trial court about the requirement that the witness be subjected to prior cross-examination, as there was some time spent discussing whether a pre-trial interview had been conducted. An unsworn Rule 15 interview, even if one had been conducted, clearly would not fulfill the perquisite of a defendant having had an opportunity to cross-examine a witness under oath in front of a judge and/or jury. 45 State v. Edwards, 136 Ariz. 177, 183, 665 P.2d 59, 65 (1983); See also Barber v. Page, 390 U.S. 719, (1968). 46 State v. Montano, 204 Ariz. 413, , 65 P.3d 61, (2003). 35

40 In State v. Edwards 47, the Arizona Supreme Court held the standard for determining unavailability is to ask whether the leads, which were not followed, would have been the subject of investigation if the State had been trying to find an important witness and it had no transcript of prior testimony. 48 Edwards held that good faith was not shown where investigative efforts of the State were significantly less then that would be expected for an important witness, despite checking with witness's mother, brother, and several records checks. 49 Even the affidavit of a prosecutor is insufficient to satisfy the good faith efforts requirement. 50 The prosecution s good-faith effort must be proven by competent evidence, sufficient to convince the court that the witness in fact cannot be produced. 51 Competent evidence includes: [A]t a minimum, a subpoena issued and returned unsatisfied, and preferably, the sworn testimony of the authorities charged with the duty of serving the subpoena and of the people having knowledge of the missing witness's... unavailability to appear in person Ariz. 177, 182, 665 P.2d 59, 64 (1983). 48 State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983); See also Kenneth S. Broun, McCormick on Evidence (Sixth ed. 2006), Volume 2, 253 at (When dealing with the confrontation rights of a criminal defendant, mere reasonable effort is insufficient to sustain the prosecutor's required burden of proof.) 49 Id. 50 State v. Archie, 171 Ariz. 415, 417, 831 P.2d 414, 416 (Ct. App. 1992). 51 State v. Alexander, 108 Ariz. 556, 561, 503 P.2d 777, 782 (1972). 52 Id. at 561, 503 P.2d at 783. See also Valuenzuela v. State, 30 Ariz. 458, 248 P. 36 (1926)(The issuance of a subpoena for a missing witness coupled with an affidavit by a deputy sheriff that he had been unable to find the witness but believed him to be in Nevada, was insufficient to justify the admission of the transcript.) 36

41 A mere statement by the prosecutor that the witness has not appeared for trial, that provides no facts from which the trial court may exercise its discretion to determine whether a good-faith effort ha[s] been made to secure the witness's presence at trial is insufficient. 53 When it concerns out-of-state witnesses, good faith efforts include attempting to use the available statutory tools to secure a witness appearance. Arizona Revised Statute, (the Uniform Act to Secure the Attendance of Witnesses) provides for the summoning of a witness from another state to testify at a criminal proceeding in Arizona. The Arizona Supreme Court held that a good-faith effort includes the State's use of this statutory tool. 54 Here, the record indicates that the prosecution s evidence in support of unavailability is limited to the pretrial testimony of Ms. Valdez. She merely stated that Ms. Kogler been gone from the lab for two-and-a-half, almost three years because she is in graduate school in another state. 55 However, the Arizona Supreme Court has previous held that [m]oving from one state to another cannot be the sole basis for unavailability of a 53 State v. Edwards, 136 Ariz. 177, 183, 665 P.2d 59, 65 (1983). 54 Id. at 182, 665 P.2d at 64. See also State v. Medina, 178 Ariz. 570, 576, 875 P.2d 803, 809 (1994)(In attempting to locate and secure the presence of a State's witness, the prosecutor must use existing formal procedures before a court may conclude that the prosecutor made a good faith effort.) 55 R.T., Motion Hearing, , P. 27, ln

42 witness 56 Moreover, the prosecution, nor Ms. Valdez, even claim that Ms. Kogler was unwilling to attend trial. There is nothing in the record demonstrating that the prosecution ever attempted to contact her in any manner, despite the fact that Ms. Valdez had spoken with Ms. Kogler a few months before the Voris trial. 57 There is no evidence of any attempt to subpoena 58 her, utilize any statutory provisions of the Uniform Act, or serve her with notice of the correct trial date. In sum, the State made no efforts to locate her for trial. Consequently, the record contains insufficient evidence to determine that Ms. Kogler was unavailable for confrontation purposes. The State has also failed to demonstrate that Voris had any prior opportunity to perform a meaningful cross-examination Ms. Kogler. 59 Such an opportunity would have included the right to cross-examine Ms. Kogler regarding her motive or bias. 60 As this was a misdemeanor charge, arising out of a court of limited jurisdiction, there was not a preliminary hearing or other adverse preceding that would cause her to testify under oath subject to cross-examination. The record also demonstrates the State did not even put the defense on notice that they intended to use a surrogate analyst until the 56 State v. Montano, 204 Ariz. 413, 421, 65 P.3d 61, 69 supplemented, 206 Ariz. 296, 77 P.3d 1246 (2003) 57 R.T., Motion Hearing, , P. 26, ln 25 through p. 27, line State v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995)(the issue is whether the state made a good-faith effort to locate the witness so that he or she could be put under subpoena.) 59 Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). 60 State v. Abdi, 226 Ariz. 361, 367, 248 P.3d 209, 215 (Ct. App. 2011)(citing Davis v. Alaska, 415 U.S. 308, , 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). 38

43 eve of trial. As a result, the long-standing prerequisites for surrogate testimony were not satisfied. CONCLUSION Based upon the foregoing, jurisdiction should be accepted and the Court of Appeals decision be reversed. RESPECTFULLY SUBMITTED this 9 th day of JANUARY, 2015 NESCI & ST. LOUIS KOPLOW LAW FIRM /s/ Joseph P. St. Louis Joseph P. St. Louis 216 North Main Avenue Tucson, Arizona Counsel for Amici Curiae /s/ Lawrence S. Koplow Lawrence S. Koplow 201 North Central Avenue, 33 rd Floor Phoenix, Arizona Counsel for Amici Curiae 39

44 CERTIFICATE OF COMPLIANCE This certificate of compliance concerns an amicus curiae brief, and is submitted under Rule 16(b)(4). The undersigned certifies that the brief for to which this Certificate is attached uses type of at least 14 points, is doublespaced, and contains 8828 words. The document to which this Certificate is attached does not, or does exceed the word limit that is set by Rule 14, Rule 22, Rule 23, or Rule 29, as applicable. RESPECTFULLY SUBMITTED this 9 th day of JANUARY, 2015 NESCI & ST. LOUIS KOPLOW LAW FIRM /s/ Joseph P. St. Louis Joseph P. St. Louis 216 North Main Avenue Tucson, Arizona Counsel for Amici Curiae /s/ Lawrence S. Koplow Lawrence S. Koplow 201 North Central Avenue, 33 rd Floor Phoenix, Arizona Counsel for Amici Curiae 40

45 CERTIFICATE OF SERVICE The undersigned has filed and served the Arizona Attorneys for Criminal Justice s Brief in Support of Real Party In Interest Voris this 9 th day of JANUARY, 2015, as follows: Original filed with the Clerk, Arizona Supreme Court and one copy of the foregoing mailed to: Gerald R. Grant, Esq. Maricopa County Attorney s Office 301 W. Jefferson St., 2 nd Floor Phoenix, AZ The Honorable Ronald Karp Justice of the Peace Pro Tempore West Mesa Justice Court Jeffrey Mehrens Attorney for Real Party in Interest NESCI & ST. LOUIS KOPLOW LAW FIRM /s/ Joseph P. St. Louis Joseph P. St. Louis 216 North Main Avenue Tucson, Arizona Counsel for Amici Curiae /s/ Lawrence S. Koplow Lawrence S. Koplow 201 North Central Avenue, 33 rd Floor Phoenix, Arizona Counsel for Amici Curiae 41