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Wednesday, December 17, 2014

State v. Williams 8-11-14 (A-8-12; 071306)

State v. Kelvin Williams 8-11-14 (A-8-12; 071306)


To find a defendant guilty of first-degree robbery in a simulated deadly-weapon case, the victim must have an actual and reasonable belief that the defendant threatened the immediate use of such a weapon, which factfinders must ascertain through application of a totality-of-the-circumstances standard, which includes consideration of the nature of any verbal threat, the defendant’s conduct, his dress, and any other relevant factors. Applying that standard here, defendant’s words, conduct, and clothing provided sufficient evidence for a reasonable jury to convict defendant of first-degree robbery.

Tuesday, December 16, 2014

State v. Dekowski 8-11-14 (A-35-12; 071019)



State v. Christopher Dekowski 8-11-14 (A-35-12; 071019)

Applying a totality-of-the-circumstances standard, defendant’s appearance, conduct, and written note demanding money and threatening a bomb in a bag provided sufficient evidence for a reasonable jury to convict defendant of first-degree robbery on a finding that the bank manager had an actual and reasonable belief that defendant was armed with a deadly weapon.

Sunday, November 30, 2014

Expungement denied where three separate crimes IN THE MATTER OF THE APPLICATION OF D.W. FOR THE EXPUNGEMENT OF RECORDS. A-0833-13T2

_________________________________
October 17, 2014

Argued September 23, 2014 – Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. 9700670-001/97-05-0925.
Expungement denied where three separate crimes    IN THE MATTER OF THE APPLICATION OF D.W. FOR THE EXPUNGEMENT OF RECORDS. A-0833-13T2   NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION  SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. PER CURIAM

In July 2013, D.W. filed a petition seeking expungement of her criminal convictions for a series of thefts committed from November 1996 to January 1997. Judge John T. Mullaney, Jr. denied her petition, finding D.W. did not qualify for expungement under N.J.S.A. 2C:52-2a. D.W. appealed. We affirm.
D.W. seeks reversal of the court's decision, arguing that her series of crimes should be treated as a single crime spree under N.J.S.A. 2C:52-2a. D.W. was convicted of three counts of theft by deception, and three counts of credit card theft. She stole three credit cards from the same victim, and used them over a seven-week period making illegal purchases at different stores on different dates.
Expungement of a conviction for an indictable crime is governed by N.J.S.A. 2C:52-2a, which allows expungement "[i]n all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime."
Previously N.J.S.A. 2C:52-2a allowed expungement where there had been no "subsequent conviction." The Legislature, in adopting the new language, focused on multiple crimes rather than multiple convictions, thus making the criteria for eligibility more restrictive. In re Ross400 N.J. Super. 117 (App. Div. 2008).
In In re R.Z.429 N.J. Super. 295 (App. Div. 2013), we reversed the grant of an expungement for a conviction of theft by deception between August 27, 1995 and December 22, 1995, and money laundering between September 6, 1995 and December 1, 1995. In R.Z. the trial court found these acts were part of a single ongoing criminal scheme. In reversing the expungement order we found that the purpose of N.J.S.A. 2C:52-2a was to offer relief to one-time offenders, and did not allow for expungement for separate crimes committed on different dates.
In In re Expungement of the Criminal Records of G.P.B.436 N.J. Super. 48, 50 (App. Div. 2014), we held "[t]he expungement of criminal records is available only if authorized by legislation. There is no constitutional or common law right to the expungement of records relating to a criminal conviction." There, G.P.B. had offered to make campaign contributions to three separate municipal officials to oppose a municipal resolution. The offers were made on two separate dates. The trial court granted expungement of the single judgment that included multiple crimes occurring on two different days. We reversed that decision.
The circumstances of G.P.B. and D.W. are very similar, involving multiple crimes committed on different days as part of one scheme. In G.P.B. the crimes took place on two consecutive days as opposed to the seven weeks in this case. This case is also analogous to R.Z. Here, D.W. stole credit cards and, according to her plea, used them illegally to purchase goods at different stores on diverse dates.1 We agree with the trial judge that this was not a single crime.
Affirmed.

Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams 219 NJ 89 (2014)

Defendant has burden to timely to object to testimony by pathologist who did not perform the victim’s autopsy State v. Williams 219 NJ 89 (2014)
Defendant’s failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.
State v. Bryden Robert Williams (A-5-12) (070388)

Decided August 6, 2014

ALBIN, J., writing for a unanimous Court.

In this appeal, the Court considers whether the admission of testimony from a pathologist who did not perform the victim’s autopsy violated defendant’s right of confrontation under the Sixth Amendment of the United States Constitution or Article I, Paragraph 10 of the New Jersey Constitution.

On the evening of September 2, 2006, Joel Whitley, Omar Boyd, and Boyd’s girlfriend attended a party at Dynesha Gibson’s apartment. Whitley became intoxicated and involved in an altercation with another party guest, and was asked to leave. A short time later, Whitley realized he had left his cell phone at the party, and he and Boyd went back to retrieve it. Gibson refused to return the phone and Whitley started kicking the apartment’s front door. Gibson told Whitley and Boyd that they should leave before defendant arrived. As Whitley and Boyd were leaving, defendant arrived. He exited his car and, armed with a handgun, aimed it at Boyd and said, “What’s the problem?” After Gibson yelled from the window that Whitley had “disrespected” either her or her sister, defendant put the gun to Whitley’s head and forced him into an adjacent alley. Defendant then pointed the gun at Whitley’s chest and fired once, killing him.

Defendant was charged with murder and related weapons offenses. At trial, defendant asserted that he acted in self-defense. He claimed that when he arrived at Gibson’s apartment, he saw Whitley banging on the apartment’s door and told him to get off the porch. As Whitley stepped off of the porch, defendant claimed that Whitley pulled out a gun and pointed it toward him. Defendant claimed that he struggled with Whitley and that as they wrestled, a single shot was fired with the gun still in Whitley’s hand. Defendant stated that he never touched the gun’s handle and was trying to disarm Whitley when the gun fired.

Dr. Zhongxue Hua, the Chief Medical Examiner of Union County and an expert in forensic pathology, testified as to the cause and manner of Whitley’s death. Dr. Hua did not perform or assist in the autopsy, which was conducted by Dr. Leonard Zaretski, Union County’s Chief Medical Examiner at the time of Whitley’s death. Dr. Zaretski was not called as a witness, and defendant did not object to Dr. Hua’s testimony or qualifications. Based on his review of the autopsy report, photographs, the victim’s clothing, and a State Police Laboratory report, Dr. Hua stated that he was able to reach independent conclusions about both the manner and cause of Whitley’s death. He stated that the manner of death was homicide and that the cause of death was a bullet that entered the left side of Whitley’s chest and moved downwards, damaging his heart and a major artery. No defensive wounds or gunpowder burns or residue were found on the victim’s body.

On cross-examination, defense counsel pursued a line of questioning consistent with a theory of self-defense. Based on gunpowder residue discovered on Whitley’s clothing, defense counsel elicited from Dr. Hua that the gun was fired several inches away from Whitley. Defense counsel also had Dr. Hua explain that the bullet took a downward path through Whitley’s body. In response to defense questioning, Dr. Hua stated that if Whitley had been holding the gun’s handle when it discharged, gunpowder residue would have been found on his hand, but that Dr. Zaretski’s report did not indicate whether he tested Whitley’s hand for gunpowder residue. Ultimately, the jury rejected self-defense as a justification for the shooting and found defendant guilty of all charges. Defendant appealed, claiming that his right to confrontation had been violated.

In an unpublished opinion, the Appellate Division rejected defendant’s claim. Although the panel noted that defendant did not object at trial to Dr. Hua’s testimony, it nevertheless addressed the merits of defendant’s confrontation argument. The panel reasoned that Dr. Hua’s testimony did not run afoul of the Confrontation Clause because he testified about his own independent findings based, not only on Zaretski’s report, but also on the photographs of the autopsy and his personal examination of Whitley’s clothing. This Court granted certification, limited to whether the admission of the testimony by the pathologist who did not perform the autopsy violated defendant’s right of confrontation. 212 N.J. 103 (2012).

HELD: Defendant’s failure to object to the admission of the testimony on confrontation grounds and his decision to cross-examine the medical examiner constitute a waiver of his right of confrontation.

1. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that the accused in a criminal trial has the right to be confronted with the witnesses against him. The Confrontation Clause prohibits the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for in-court testimony. The right of confrontation may be waived by the accused, as the Constitution does not compel a criminal defendant to insist that the State call a live witness who might damage his case. Because counsel and the defendant know their case and their defenses, they are in the best position to make the tactical decision whether to raise a Confrontation Clause objection. Therefore, defendant always has the burden of raising his Confrontation Clause objection.  

2. Where, however, the failure to object is so patently unreasonable and so clearly erroneous that no rational counsel acting within the wide range of professional norms would pursue such a course, a trial court may take notice of such an error. This is true even when the error has not been brought to the court’s attention by a party. When a defendant later claims that a trial court was mistaken for allowing him to pursue a chosen strategy – a strategy not unreasonable on its face but one that did not result in a favorable outcome – his claim may be barred by the invited-error doctrine. The doctrine is grounded in considerations of fairness, but will not apply automatically if to do so would cause a fundamental miscarriage of justice.  

3. Here, when the State offered Dr. Hua as an expert in the field of forensic pathology, defense counsel made no objection. Defendant then proceeded to extract favorable testimony from Dr. Hua to support his self-defense theory, emphasizing that the shot that killed Whitley was fired from several inches away, that the bullet followed a downward trajectory, and that gunpowder residue was found on Whitley’s clothing. These facts, the defense evidently concluded, were consistent with defendant’s account of a struggle for a gun in Whitley’s hand and with the gun accidentally discharging and killing Whitley. Additionally, Dr. Zaretski’s autopsy did not indicate that he tested for gunpowder residue on Whitley’s hands. The absence of such residue would have strongly suggested, and perhaps proven, that the gun was not in Whitley’s hand when it discharged and would have been damning to defendant’s case. The defense, arguably, was content to have Dr. Hua on the stand rather than Dr. Zaretski, not wanting to chance that Dr. Zaretski might offer damaging testimony.  

4. Defendant had the burden of raising his Confrontation Clause objection and failed to do so. The defense cannot be faulted for not insisting that the State call a live witness who might have highlighted weaknesses in the defense. The doctrine of invited error does not permit a defendant to pursue a strategy of allowing a substitute witness to testify, and then when the strategy does not work out as planned, cry foul and win a new trial. Here, the trial court could not have perceived that defense counsel was committing an error clearly capable of producing an unjust result by declining to object to the testimony of Dr. Hua. In addition, had defense counsel raised a timely objection, and had the trial court granted it, the State might have called Dr. Zaretski to testify, nullifying the Confrontation Clause issue. Having failed to raise or preserve his confrontation claim, defendant has waived it and the Court declines to reach the merits of defendant’s Confrontation Clause arguments.  

5. Confrontation Clause objections to the expected testimony of a State’s expert witness on the ground that he or she did not conduct, supervise, or participate in a scientific or other such test are best addressed before trial to avoid surprise or unfairness. Accordingly, at a reasonable time before trial, but no later than the pretrial conference, absent extenuating circumstances, the State should notify the defendant of its intention to call an expert witness who did not conduct, supervise, or participate in a scientific or other such test about which he or she will testify. After the State gives notice, the defense should be required, within ten days, or longer if necessary, to notify the State that it objects to the expected testimony of the expert witness on Confrontation Clause grounds. The Court refers to the Supreme Court Committee on Criminal Practice the crafting of a rule, with any needed improvements, on pretrial notice and demand.  

The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court for a technical correction to the judgment of conviction.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA; and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’S opinion.


Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels ­­­­219 NJ 1 (2014)

Supervising chemist can testify in vehicular homicide if they independently verified correctness of blood test results State v. Michaels ­­­­219 NJ 1 (2014)
Defendant’s confrontation rights were not violated by the admission of Dr. Barbieri’s report or his testimony regarding the blood tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the testing process, independently verified the correctness of the machine-tested processes and results, and formed an independent conclusion about the results. Defendant’s opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic evidence presented against her.
 State v. Julie L. Michaels (A-69-12) (072106)

[NOTE:  This is a companion case to State v. Reginald Roach,

Decided August 6, 2014

LaVECCHIA, J., writing for a majority of the Court.

This appeal requires the Court to address whether defendant’s confrontation rights were violated by the admission of a forensic report analyzing defendant’s blood sample, where the report was admitted into evidence through the testimony of the report’s author -- a laboratory supervisor and qualified expert who had reviewed and certified the test results -- without the testimony of the various individuals who had performed tasks associated with the testing procedures.

Defendant’s blood sample was sent by the local police department to NMS Labs, a private laboratory that performs analytical testing for a number of private and public entities. Fourteen NMS analysts were involved in various aspects of handling and performing gas chromatography/mass spectrometry testing on defendant’s blood sample. The testing indicated that defendant’s blood sample contained cocaine, cocaine derivatives, and alprazolam, an active ingredient in Xanax.

The testing of defendant’s blood sample produced approximately 950 pages of data, which was provided to Dr. Barbieri, a forensic toxicologist and pharmacologist who also held the titles of Assistant Laboratory Director and Toxicology Technical Leader at NMS Labs. Dr. Barbieri reviewed all of the data and then wrote, certified and signed a report, concluding that defendant’s blood contained cocaine and alprazolam in such quantities that she would have been impaired and unfit to operate a motor vehicle at the time the sample was collected.

Defendant was indicted on multiple charges including second-degree vehicular homicide while intoxicated and third-degree assault by auto while intoxicated. At defendant’s trial, Dr. Barbieri testified about the general processes used by NMS to analyze blood samples, the specific tests performed on defendant’s blood, and the results of those tests. Dr. Barbieri acknowledged that there is a “human element” to the testing procedures and that he had not conducted the tests himself. However, he stated that he had reviewed the voluminous machine-generated data and was satisfied that the testing had been done properly and that his independent review permitted him to certify the results. Dr. Barbieri opined that, at the time of the collision, defendant was impaired by the quantity of alprazolam and cocaine found in her system, and that she would have been unable to drive safely.

Defendant objected to the admission of Dr. Barbieri’s report as hearsay, and the trial court found the report admissible. At the close of the State’s case, defendant moved to strike Dr. Barbieri’s testimony, contending that the State was required to present testimony from the persons who actually conducted the blood sample testing. The trial court denied the motion, noting that as the lab supervisor, Dr. Barbieri could testify about the procedures that were employed and give an opinion, based on his expertise, as to what conclusions should be drawn from that testing.

The jury found defendant guilty on all counts. Defendant moved for a new trial, raising, among other arguments, a Sixth Amendment Confrontation Clause objection to Dr. Barbieri’s testimony. The court denied the motion and sentenced defendant to an aggregate extended term of eighteen years’ imprisonment with twelve years and two months of parole ineligibility. Defendant appealed her convictions and sentence, casting her arguments regarding Dr. Barbieri’s testimony as a violation of the Confrontation Clause. The Appellate Division affirmed, and this Court granted defendant’s petition for certification limited to the confrontation issue. 214 N.J. 114 (2013).

HELD: Defendant’s confrontation rights were not violated by the admission of Dr. Barbieri’s report or his testimony regarding the blood tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the testing process, independently verified the correctness of the machine-tested processes and results, and formed an independent conclusion about the results. Defendant’s opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic evidence presented against her.

1. The Sixth Amendment to the United States Constitution provides in part that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court’s current line of cases on Confrontation Clause jurisprudence begins with Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004), which held that an accused’s right to confront witnesses applies to all out-of-court statements that are “testimonial.” Under Crawford, such statements are inadmissible unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.

2. Since 2004, the United States Supreme Court has considered Crawford’s application in three cases involving forensic reports—Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed.2d 610 (2011); and Williams v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L. Ed.2d 89 (2011). In Melendez-Diaz, supra, the Supreme Court reversed a defendant’s conviction where the prosecution failed to produce any analyst to support and be cross-examined regarding the statements contained in a forensic document. In a five-to-four decision, the Court held that laboratory certificates setting forth the results of analysis of drug samples were testimonial statements and therefore were inadmissible. 557 U.S. at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322.

3. In Bullcoming, another five-to-four decision, the Supreme Court considered “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification – made for the purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” Bullcoming, supra, 564 U.S. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 615-16. The Court held that the forensic report was inadmissible, reasoning that the testimony of a substitute analyst who did not perform or observe the tests and did not certify the results constituted “surrogate testimony” that violated the defendant’s confrontation rights. Id. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. Justice Sotomayor wrote a separate concurring opinion that emphasized the limited nature of the Court’s holding by noting, among other points, that Melendez-Diaz did not stand for the proposition that every person identified as performing some task in connection with a forensic report must be called as a witness. Id. at __, 131 S. Ct. at 2722, 180 L. Ed. 2d at 628-230 (Sotomayor, J., concurring).

4. Most recently, in Williams, a plurality of the Court found that a defendant’s right of confrontation was not violated by the testimony of an individual who matched a DNA profile produced by a private laboratory to the defendant’s DNA. Williams, 567 U.S. at __, 132 S. Ct. at 2227, 183 L. Ed. 2d at 98. Notably, the plurality’s analysis was criticized by a majority of the Court, including four dissenting members, id. at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J., dissenting), and Justice Thomas, who joined in the plurality’s judgment, but disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring in the judgment). Because each of the Williams opinions embraces a different approach to determining whether the use of forensic evidence violates the Confrontation Clause, and because a majority of the Supreme Court expressly disagreed with the rationale of the plurality, there is no narrow rule that this Court can discern from Williams and thus Williams’s force, as precedent, is at best unclear. The Court thus turns to the pre-Williams cases for more reliable guidance on confrontation rights.

5. Applying pre-Williams jurisprudence, the Court observes that neither Melendez-Diaz nor Bullcoming requires that every analyst involved in a testing process must testify in order to admit a forensic report into evidence and satisfy confrontation rights. Nor do the cases suggest that the primary analyst involved in the original testing must testify when a different, sufficiently knowledgeable expert is available to testify. Moreover, the Court notes that it would take confrontation law to a level that is not only impractical, but, equally importantly, is inconsistent with prior law addressing the admissibility of an expert’s testimony in respect of the substance of underlying information that he or she used in forming his or her opinion. By way of background, the Court notes that, in determining when the facts underlying a forensic expert opinion may be disclosed to the jury, New Jersey’s evidence case law has focused on whether the witness is knowledgeable about the particular information used in forming the opinion to which he or she is testifying and has a means to verify the underlying information even if he or she was not the primary creator of the data. Such law is consistent with the principle that a knowledgeable expert who is someone other than the primary analyst who conducted a forensic test may testify to an opinion regarding testing results, when those results have been generated by demonstrably calibrated instruments.

6. The Court then examines defendant’s argument that her confrontation rights were violated by Dr. Barbieri’s testimony and the admission of his certified report. Unlike in Melendez-Diaz, where no witness was offered to testify to the statements contained in the forensic document that was admitted into evidence, here the report was admitted through the live testimony of Dr. Barbieri, the person who prepared, signed, and certified the report, and Dr. Barbieri was available for cross-examination. In addition, the forensic report that the Supreme Court rejected in Bullcoming had been admitted through the testimony of a co-analyst or “surrogate” who did not serve as supervisor or reviewer responsible for certifying the results. Here, the Court accepts that Dr. Barbieri’s report was testimonial. However, Dr. Barbieri supervised the analysts who performed the tests, was qualified as an expert in the relevant subject areas, analyzed the machine-generated data, and produced and certified the testimonial report in issue. As the reviewer of the testing process and the author of the report, it was proper for Dr. Barbieri to testify to its contents and to answer questions about the testing it reported.

7. In response to the dissenting opinion, the Court explains that Dr. Barbieri was not merely repeating the findings and conclusions of the analysts who conducted the testing. Rather, the findings and conclusions contained in the report and to which he testified were his own. A truly independent reviewer or supervisor of testing results can testify to those results and to his or her conclusions about those results, without violating a defendant’s confrontation rights, if the testifying witness is knowledgeable about the testing process, has independently verified the correctness of the machine-tested process and results, and has formed an independent conclusion about the results. Testimonial facts can “belong” to more than one person if the verification and truly independent review described above are performed and set forth on the record by the testifying witness.

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, expresses the view that the Sixth Amendment’s Confrontation Clause bars the admission of this forensic report and the testimony of the expert because the State did not produce for cross-examination the analyst(s) who actually performed the test on defendant’s blood.
In criminal cases, the State routinely retains scientists and analysts to perform tests on a suspect’s blood to detect the presence of drugs or alcohol.
The Sixth Amendment’s Confrontation Clause generally bars the admission of an absent witness’s out-of-court testimonial hearsay as a substitute for live in-court testimony when the accused has not had the opportunity to cross-examine the absent witness. Crawford v. Washington, 541 U.S. 36, 50-62, 124 S. Ct. 1354, 1363-71, 158 L. Ed. 2d 177, 192-99 (2004).
The purpose of the Confrontation Clause is not to foster expedient trial procedures, but to ensure that testimonial evidence is tested in the crucible of cross-examination -- however time consuming or difficult that process may be. See Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. Thus, chemical analysts who provide out-of-court “testimony” through laboratory reports must be made available for cross-examination. Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2716, 180 L. Ed. 2d at 622.
Curtailing confrontation rights is not the answer to the uncertainty in federal jurisprudence.

The admission of testimonial statements from witnesses absent from trial violates the Sixth Amendment’s Confrontation Clause unless the witnesses are “unavailable,” and “the defendant has had a prior opportunity to cross-examine” them. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. A statement is “testimonial” if the primary purpose of making the statement is to establish a fact as evidence in a later criminal prosecution. Bullcoming, supra, 564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d at 620 n.6 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).
Applying that test in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321 (2009), the Court held that a laboratory report identifying a substance as cocaine was testimonial evidence and therefore its admission at trial, without the testimony of the analyst who prepared it, violated the Sixth Amendment’s Confrontation Clause. The report in Melendez-Diaz was created for the specific purpose of serving “as evidence in a criminal proceeding.” Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 615.
Bullcoming presented a variation of the theme in Melendez-Diaz. In Bullcoming, the Court held that the in-court testimony of a scientist who did not conduct or participate in any laboratory tests relevant to the case, but who read into evidence the actual analyst’s test results contained in a certified report, violated the Confrontation Clause. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619.
In Bullcoming, the defendant was arrested for driving while intoxicated (DWI). Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. A blood sample was taken from him at a hospital and submitted for testing at a state laboratory. Ibid. A forensic analyst operated a gas chromatograph machine to test Bullcoming’s blood sample and determined his blood alcohol content (BAC). Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617. The Supreme Court made the following observations about the operation of the gas chromatograph machine: “‘[T]he analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.’” Id. at ___ n.1, 131 S. Ct. at 2711 n.1, 180 L. Ed. 2d at 617 n.1 (quoting David T. Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine ed., 2d ed. 2006)). Although the gas chromatograph machine produces a printed graph, securing “an accurate BAC measurement . . . is not so simple or certain.” Ibid.
The forensic analyst determined that Bullcoming’s BAC was 0.21, a level sufficient to support a conviction for aggravated DWI. Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617–18. The analyst was not called as a witness at Bullcoming’s trial. Id. at ___, 131 S. Ct. at 2711–12, 180 L. Ed. 2d at 618. Instead, the State called Gerasimos Razatos, a scientist also qualified as an expert in the gas chromatograph machine but who did not participate in testing Bullcoming’s blood. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live, in-court testimony” about laboratory procedures, the machine’s operation, and the results of the BAC test. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. In addition, the analyst’s report was admitted as a business record. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618.
The United States Supreme Court held that Razatos’s surrogate testimony violated the Confrontation Clause because Bullcoming did not have the opportunity to cross-examine the forensic analyst who tested his blood. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. According to the Court, the surrogate expert’s testimony “could not convey what [the forensic analyst] knew or observed about the events his [laboratory report] concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part.” Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Indeed, at trial, Razatos admitted that “‘you don’t know unless you actually observe the analysis that someone else conducts, whether they followed the protocol in every instance.’” Id. at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L. Ed. 2d at 622 n.8 (alteration in original). Razatos, moreover, was unable to testify why the forensic analyst was on unpaid leave. Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Thus, the defense could not ask “questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for [the forensic analyst’s] removal from his work station.” Ibid.
The Supreme Court reached conclusions relevant to the facts before the court. First, “the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar.” Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 621. Second, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess “‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’” Ibid. (quoting Melendez-Diaz, supra, 557 U.S. at 319 n.6, 129 S. Ct. at 2537 n.6, 174 L. Ed. 2d at 327 n.6).
In her concurring opinion, Justice Sotomayor noted that Bullcoming would have been “a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results.” Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629. Razatos did not observe the testing of the forensic analyst. Ibid.
B.
In Williams v. Illinois, supra, the Court divided over the question of whether a DNA profile, prepared by a specialist who did not testify, was offered for the truth of its contents. 567 U.S. at ___, ___, 132 S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99, 108 (plurality opinion).  No justice in Williams suggested that passing testimonial statements offered for their truth through a surrogate witness would be acceptable under the Confrontation Clause.
See State v. O’Neill, 193 N.J. 148, 175 (2007) (affording protections to accused under state law when “[t]he shifting sands of federal jurisprudence provide no certainty concerning the standard that might apply to the next set of slightly different facts”). Cautious prosecutors can still place on the stand the chemist or analyst who actually conducted the test and will not have to worry about a United States Supreme Court decision upending a conviction.