{ "id": 12168405, "name": "STATE OF NEW MEXICO, Plaintiff-Appellant, v. MARIO CARMONA, Defendant-Appellee", "name_abbreviation": "State v. Carmona", "decision_date": "2016-03-17", "docket_number": "No. S-1-SC-35851; Docket No. 33,378", "first_page": "707", "last_page": "720", "citations": [ { "type": "official", "cite": "2016-NMCA-050" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "135 S. Ct. 2173", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12590213 ], "weight": 2, "year": 2015, "pin_cites": [ { "page": "2179", "parenthetical": "\"[O]ur decision in Crawford did not offer an exhaustive definition of 'testimonial' statements.\"" }, { "page": "2181" } ], "opinion_index": 0, "case_paths": [ "/s-ct/135/2173-01" ] }, { "cite": "931 So. 2d 184", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8411445 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "186-87" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/so2d/931/0184-01" ] }, { "cite": "37 N.E.3d 589", "category": "reporters:state_regional", "reporter": "N.E.3d", "weight": 11, "year": 2015, "pin_cites": [ { "page": "592" }, { "page": "594" }, { "page": "595" }, { "page": "596, 600" }, { "page": "596" }, { "page": "597", "parenthetical": "alterations omitted" }, { "page": "598" } ], "opinion_index": 0 }, { "cite": "2010-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246487 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 37-39" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0761-01" ] }, { "cite": "305 P.3d 956", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-038", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191301 ], "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0568-01" ] }, { "cite": "132 S. Ct. 2221", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12407017 ], "weight": 56, "year": 2012, "pin_cites": [ { "page": "2229" }, { "page": "2230" }, { "page": "2231" }, { "page": "2231" }, { "parenthetical": "alterations, internal quotation marks, and citation omitted" }, { "page": "2236-41", "parenthetical": "plurality opinion" }, { "page": "2240-41", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "2243", "parenthetical": "plurality opinion" }, { "page": "2243-44" }, { "page": "2244" }, { "page": "2244", "parenthetical": "emphasis added" }, { "page": "2256", "parenthetical": "Thomas, J., concurring in judgment" }, { "page": "2257", "parenthetical": "Thomas, J., concurring in judgment" }, { "parenthetical": "internal quotation marks and citations omitted" }, { "page": "2258", "parenthetical": "Thomas, J., concurring in judgment" }, { "page": "2260", "parenthetical": "Thomas, J., concurring in judgment" }, { "page": "2266", "parenthetical": "Kagan, J., dissenting" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "2266-67", "parenthetical": "Kagan, J., dissenting" }, { "page": "2236", "parenthetical": "plurality opinion" }, { "page": "2267", "parenthetical": "Kagan, J., dissenting" }, { "page": "2236", "parenthetical": "plurality opinion" }, { "page": "2267", "parenthetical": "Kagan, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/567/0050-01" ] }, { "cite": "131 S. Ct. 2705", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 4334192, 12450500 ], "weight": 17, "year": 2011, "pin_cites": [ { "page": "2710" }, { "page": "2710-12" }, { "page": "2710" }, { "page": "2710-11" }, { "page": "2717" }, { "page": "2711" }, { "page": "2717" }, { "page": "2717-18" }, { "page": "2723-24", "parenthetical": "Kennedy, J., dissenting" }, { "page": "2714" } ], "opinion_index": 0, "case_paths": [ "/us/564/0647-01", "/l-ed-2d/180/0610-01" ] }, { "cite": "557 U.S. 305", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657952 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "308" }, { "page": "310", "parenthetical": "alteration and citation omitted" }, { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "year": 1980, "pin_cites": [ { "page": "66", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "294 P.3d 435", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191021 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 7-21" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0363-01" ] }, { "cite": "547 U.S. 813", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3275498 ], "weight": 6, "year": 2006, "pin_cites": [ { "page": "822" }, { "page": "817-20" }, { "page": "827" }, { "parenthetical": "emphasis omitted" }, { "page": "831-32", "parenthetical": "alteration and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/547/0813-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 10, "year": 2004, "pin_cites": [ { "page": "42, 68-69" }, { "page": "68-69" }, { "page": "51" }, { "parenthetical": "citation omitted" }, { "page": "51, 53" }, { "page": "54" }, { "page": "51-52", "parenthetical": "alteration, internal quotation marks, and citations omitted" }, { "page": "68" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "2009-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4241923 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0402-01" ] } ], "analysis": { "cardinality": 1548, "char_count": 43067, "ocr_confidence": 0.791, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24685107124006073 }, "sha256": "39462e8d04b7d49d97b3f018d9975a7e77b717796012b8101d5bc7b33cc43ee8", "simhash": "1:bebab7227ecb136f", "word_count": 6788 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "JAMES J. WECHSLER, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellant, v. MARIO CARMONA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} The State appeals the district court\u2019s order suppressing its expert\u2019s opinion that Defendant\u2019s DNA was contained in samples taken from an alleged victim by a now-deceased Sexual Assault Nurse Examiner (SANE). We affirm.\nBACKGROUND\n{2} In 2003, nine-year-old P.W. told her mother that Defendant (whom P.W.\u2019s mother had invited to stay overnight at her house as a guest) entered P.W.\u2019s bedroom at night and licked her vagina and anus. P.W.\u2019s mother called the police, who took P.W. and her mother to St. Joseph\u2019s Hospital (now known as the Women\u2019s hospital) to be examined. P.W. was examined by Lydia Vandiver (SANE Vandiver), who swabbed P.W. for DNA evidence and collected her clothing, bedding, and other personal effects.\n{3} Defendant was charged by grand jury indictment with three counts of criminal sexual contact of a minor (CSCM) in the third degree, in violation of NMSA 1978, \u00a7 30-9-13(A) (2003). After his arrest, Defendant was sent to Colorado to serve the remainder of a sentence for an unrelated criminal conviction. In 2011, Defendant was released and his prosecution in New Mexico resumed. On the State\u2019s motion, the district court ordered that Defendant submit to a buccal swab to facilitate comparison of his DNA to that present in the samples collected from P.W. eight years earlier by SANE Vandiver.\n{4} In 2013, and with the case still pending, SANE Vandiver died. Defendant moved to suppress the DNA evidence and a report prepared by the State\u2019s expert witness, Alanna Williams, comparing the evidence collected by SANE Vandiver with that from Defendant\u2019s buccal swab. Defendant argued that without SANE Vandiver\u2019s in-court testimony, (1) the State could not establish a chain of custody for the swabs or the relevance of Ms. Williams\u2019 opinion; and (2) admitting the DNA evidence gathered from P. W. \u2019s body by SANE Vandiver would violate his right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution.\n{5} At a hearing on Defendant\u2019s motion to suppress, P.W. testified about her physical examination, during which SANE Vandiver \u201cremoved [her] clothing, [then] shook them out onto a plastic tarp or paper in order to collect any hairs or DNA samples that might be in there.\u201d When asked about SANE Vandiver\u2019s collection of the DNA evidence, P.W. stated that she first observed SANE Vandiver remove swabs from labeled glass vials. P.W. described the swabs as \u201clike Q-tips, but long[.]\u201d SANE Vandiver \u201cswabbed me in various areas, such as my anus, my vagina, into the crack of my butt and places like that where the DNA might have been.\u201d When finished, SANE Vandiver \u201cput [the swabs] back in the vial and screwed them up and [then] put them ... in a bag, in a manil[]a envelope.\u201d P.W. did not recall SANE Vandiver swabbing any other areas of her body.\n{6} Constance Monahan, a statewide SANE coordinator and director of the Albuquerque SANE Collaborative at the time of the alleged assault, also testified. Ms. Monahan knew SANE Vandiver at the time P.W. was examined in 2003 .Ms. Monahan testified that SANE Vandiver was the clinical coordinator for the Albuquerque SANE program, and a \u201ckey nurse instructor[]\u201d for New Mexico\u2019s statewide SANE training program. Ms. Monahan was also aware that SANE Vandiver received specialized training for pediatric examinations at Para Los Ni\u00f1os under the tutelage of Dr. Renee Ornelas, and that SANE Vandiver worked as a contract clinician and attended various seminars on forensic nursing. As well, SANE Vandiver provided formal SANE training to nurses statewide and personally performed sexual assault examinations at various hospitals in Albuquerque.\n{7} Regarding the manner by which evidence was collected during a typical sexual assault examination, Ms. Monahan stated that\n[the SANE] would . . . meet the patient at the clinic, and then there would be a general process from\u2014or guidelines, in terms of the questions asked . . . [the SANE] then move[s the patient] into an exam room [to] do the evidence collection and the medical documentation of injury, and then the discharge.\nAs to evidence collection kits, and in particular the so-called \u201cfast track kits\u201d used at the time and employed by SANE Vandiver to examine P.W., Ms. Monahan testified as follows:\nThe New Mexico sexual assault evidence kit is a standardized packaging and process for evidence collection from sexual assault victims, whatever their age. Inside the kit is a series of envelopes and brown bags and directions and forms . . . [that are] standardized in New Mexico.\nThe envelopes [in the fast track kit] were preprinted to indicate the orifice or the location of the body. . . . The swabs were inside already in the envelopes. So when the nurse opened up the kit, she would reach for the smaller envelope and inside, the swabs would be there.\nThe primary purpose would be for consistency, to treat all victims, patients the same way, and it would be to standardize^ the process, so that we were all doing it the same way in New Mexico.\n{8} According to Ms. Monahan, SANE Vandiver performed a third of the total examinations in any given month at the hospital where the SANE program was based. Ms. Monahan testified that SANE Vandiver averaged around \u201c[ten] to [twenty] shifts a month\u201d and within her shifts typically handled anywhere from \u201cten to fifteen [cases] a month over the course of two and [one-]half years.\u201d\n{9} Ms. Monahan\u2019s own job duties included acting as the custodian of evidence collected by SANEs, including SANE Vandiver. It was expected that once a SANE had removed and utilized swabs, returned them into and sealed the kit, that SANE would next place the kit inside an empty locker or a locked refrigerator through a slot. That evidence was then accessible only by Ms. Monahan, who possessed the lone access key. Once a week, Ms. Monahan would collect logs and samples from the locker and refrigerator, place them into a large duffel bag, and deliver the bag to the Albuquerque Police Department crime laboratory. Ms. Monahan testified that this process was followed for P.W.\u2019s swabs, and that she recognized SANE Vandiver\u2019s signature on evidence logs she retrieved. Ms. Monahan personally delivered the evidence SANE Vandiver collected from P.W. to police investigators on April 29, 2003.\n{10} Additionally, the State proffered testimony of various chain-of-custody witnesses and of its DNA analyst, Ms. Williams, who would testify that the chain of custody regarding the swabs she examined indicated that they were those used to collect evidence from P.W. by SANE Vandiver. Based on a comparison of a profile developed from DNA found on the swabs and a profile developed from DNA on Defendant\u2019s buccal swab, Ms. Williams would conclude that Defendant\u2019s DNA was present on the swabs taken from P.W. by SANE Vandiver. The State further explained that Ms. Williams\u2019 testimony would be based on the labels affixed to the envelopes containing swabs that SANE Vandiver had used on P.W.\n{11} Defendant\u2019s attorney argued that introduction of Ms. Williams\u2019 testimony would violate the Confrontation Clause because\nthe SANE examiner has a tremendous amount of discretion in terms of how to conduct the test. . . SANE kits are not medical procedures; it\u2019s evidence collection. It\u2019s equivalent to a technician taking picturefs] at a scene or collecting bullet casings. . . . And it\u2019s testimonial, because it\u2019s offered for prosecution. It\u2019s collected for prosecution, and therefore the credibility and motives of the people involved are at issue}.]\n{12} On multiple rationales, the district court granted Defendant\u2019s motion to suppress. First, applying Rule 11-401 NMRA, the district court determined that the DNA evidence was not relevant. Second, it ruled that the State \u201cfailed to establish a reliable chain of custody.\u201d Third, it concluded that admitting the DNA evidence would violate Defendant\u2019s right to \u201cconfront and cross-examine witnesses}.]\u201d The State appeals.\nDISCUSSION\nThe Confrontation Clause Prohibits the Introduction of a Hearsay Statement When Its Declarant Is Unavailable to Testify in Person and Its Primary Purpose Is to Establish or Prove Past Events Potentially Relevant to Later Criminal Prosecution\n{13} We review the district court\u2019s determination that evidence is inadmissible under the Confrontation Clause de novo. State v. Zamarripa, 2009-NMSC-001, \u00b6 22, 145 N.M. 402, 199 P.3d 846. To assess whether admission of the DNA evidence collected by SANE Vandiver or Ms. Williams\u2019 expert testimony would violate the Confrontation Clause, we first summarize the holding in Crawford v. Washington, 541 U.S. 36 (2004), the seminal United States Supreme Court case in this area. Second, we explain the \u201cprimary purpose\u201d test for determining the scope and application of the Confrontation Clause first set out in Davis v. Washington, 547 U.S. 813 (2006). Third, we discuss the United States Supreme Court\u2019s application of the \u201cprimary purpose\u201d test in the context of scientific evidence and expert testimony. Finally, we apply our own Supreme Court\u2019s more recent decision in State v. Navarette, 2013-NMSC-003, 294 P.3d 435. Our analysis of modern Confrontation Clause jurisprudence points squarely to the following conclusion: the Confrontation Clause prohibits the admission of DNA evidence collected by an unavailable SANE and any expert testimony based thereon when the primary purpose animating the SANE\u2019s collection of such evidence is to assist in the prosecution of an individual identified at the time of the collection.\n1. Crawford Eliminated a Reliability-Focused Confrontation Clause Analysis and Established a Context-Based Evaluation to Ascertain Whether a Statement Amounts to Testimonial Hearsay\n{14} The Confrontation Clause provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]\u201d U.S. Const, amend. VI. In Ohio v. Roberts, the Supreme Court interpreted the Confrontation Clause to permit the admission of an unavailable witness\u2019s hearsay statements (assuming other grounds for admissibility are met) if the statement bears \u201cadequate indicia of reliability.\u201d 448 U.S. 56, 66 (1980) (internal quotation marks omitted), overruled by Crawford, 541 U.S. at 42, 68-69. This interpretation of the Confrontation Clause prevailed until the Court decided Crawford and adopted a stricter interpretation of the right at stake. 541 U.S. at 68-69.\n{15} Crawford observed that the text of the Confrontation Clause illustrates its purpose: combating the use of ex parte statements against the accused. Id. at 51. That text indicates the Clause\u2019s limits, as well: it only \u201capplies to \u2018witnesses\u2019 against the accused\u2014in other words, those who \u2018bear testimony.\u2019 \u201d Id. (citation omitted). Crawford inferred that the term \u201cwitness\u201d as used in the Clause applied only to a particular category of witness testimony, and not to any and every out-of-court statement\u2014in other words, not all hearsay, only \u201ctestimonial hearsay.\u201d Id. at 51, 53. Crawford concluded that the Confrontation Clause prohibits the introduction of testimonial hearsay unless the accused has had the opportunity to cross-examine the declarant. Id. at 54.\n{16} Crawford also identified \u201c[vjarious formulations of this core class of\u2018testimonial\u2019 statements!)]\u201d\nex parte in-court testimony or its functional equivalent\u2014that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial}.]\nId. at 51-52 (alteration, internal quotation marks, and citations omitted). Although the Court noted that \u201ctestimony at a preliminary hearing, before a grand jury,... a former trial; [or statements during] police interrogations\u201d were all sufficient to trigger the Confrontation Clause, id. at 68, the Court declined to predefine any necessary criteria for determining whether a given piece of evidence is \u201ctestimonial.\u201d See Ohio v. Clark, _ U.S. _, _, 135 S. Ct. 2173, 2179 (2015) (\u201c[O]ur decision in Crawford did not offer an exhaustive definition of \u2018testimonial\u2019 statements.\u201d).\n2. In Davis, the Supreme Court Held That the \u201cPrimary Purpose\u201d for Which a Statement Is Made Determines Whether It Is Testimonial\n{17} InDavis, the Supreme Courtreturned its attention to the Confrontation Clause, and articulated a more generalized rule for determining whether a statement constitutes testimonial hearsay when it does not fall within the \u201ccore class\u201d of testimonial statements set out in Crawford:\nStatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.\nDavis, 547 U.S. at 822.\n{18} Davis applied the \u201cprimary purpose\u201d test to separate appeals, one raising a Confrontation Clause challenge to the transcript of a 911 call made by a domestic violence victim, the other challenging a \u201cbattery affidavit\u201d executed by another victim. Id. at 817-20. The Court held that a domestic violence victim\u2019s statements to the 911 operator were non-testimonial because they concerned ongoing events involving a \u201cbona fide physical threat},]\u201d not a description of events that had already passed. Id. at 827. \u201c[V]iewed objectively,\u201d the Court reasoned, the questions asked of the victim by the 911 operator were designed to solicit answers \u201cnecessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past.\u201d Id. (emphasis omitted). By contrast, the Court found that a \u201cbattery affidavit\u201d executed by the victim of domestic violence was testimonial because it provided a \u201cnarrative of past events [that] was delivered at some remove in time from the danger [the victim] described. And after [the victim] answered the officer\u2019s questions, he had her execute an affidavit, in order, he testified, \u2018to establish events that have occurred previously.\u2019 \u201d Id. at 831-32 (alteration and citation omitted).\n{19} Davis delineates an important distinction between initial information gathered by law enforcement that is not necessarily motivated by a desire for later use in a criminal prosecution, and information gathered once any emergency has been resolved and the police have turned their attention to collecting evidence for use in a criminal prosecution against a known criminal perpetrator. When this latter purpose primarily motivates the activities of law enforcement or other state actors, the future-accused\u2019s right under the Confrontation Clause to test a hearsay declarant\u2019s testimony during trial is triggered.\n3. The Supreme Court\u2019s Fractured Application of the \u201cPrimary Purpose\u201d Test When Applied to Scientific Evidence and Expert Testimony Leaves Lower Courts With Little Guidance\n{20} Even more recently, the Supreme Court applied Davis\u2019s \u201cprimary purpose\u201d test to chemical analysis reports in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 564 U.S._, 131 S. Ct. 2705 (2011), and to DNA analysis in Williams v. Illinois, 567 U.S._, 132 S. Ct. 2221 (2012). Although the Supreme Court was more or less unified in its resolution of Crawford and Davis (no justice dissented from either judgment), the Court was barely able to assemble a majority of justices in Melendez-Diaz and Bullcoming. And in Williams, the case most directly on point, the Supreme Court was unable to obtain majority support for any one rationale analyzing the Confrontation Clause implications of an expert\u2019s reliance on hearsay statements made by an unavailable declarant in reaching her opinion.\na. Melendez-Diaz Holds That a Laboratory Certification That Identifies a Substance to Be Cocaine Is Testimonial Hearsay\n{21} Melendez-Diaz concerned \u201ccertificates of analysis\u201d containing sworn statements by laboratory analysts that substances found in bags seized from the defendant contained cocaine. 557 U.S. at 308. The Court held that the certificates fell within the core exemplars of testimonial hearsay identified in Crawford: although \u201cdenominated by Massachusetts law [to be] \u2018certificates,\u2019 [they] are quite plainly affidavits: declarations of facts written down and sworn to by the declarant before an officer authorized to administer oaths. They are incontrovertibly a \u2018solemn declaration or affirmation made for the purpose of establishing or proving some fact. \u2019 \u201d Id. at 310 (alteration and citation omitted) (quoting Crawford, 541 U.S. at 51). The Court also found that the statements failed Davis\u2019s \u201cprimary purpose\u201d test: under the Massachusetts statute providing for the admission of the test results into evidence, the \u201cso/e purpose\u201d of the certificates \u201cwas to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance].]\u201d Id. at 311 (internal quotation marks and citation omitted).\n{22} Joined by three colleagues, Justice Kennedy dissented. He maintained that the majority had \u201cswe[pt] away an accepted rule governing the admission of scientific evidence . . . based on\u201d Crawford and Davis, \u201ctwo recent opinions that say nothing about forensic analysts[.]\u201d Id. at 330 (Kennedy, J., dissenting). Justice Kennedy reasoned that the rule allowing for the admission of scientific analysis withoirt requiring the in-person testimony of the analyst had historical pedigree, and that by rejecting it the Court had created more problems than it solved: because so many individuals \u201cplay a role in a routine test for the presence of illegal drugs],]\u201d he worried that classifying all such evidence as testimonial under the Confrontation Clause would have the practical effect of preventing the prosecution from presenting any scientific evidence whatsoever. Id. at 332-33 (Kennedy, J., dissenting). Justice Kennedy concluded that the Confrontation Clause\u2019s reference to \u201cwitnesses against [the defendant]\u201d limits its application to only lay witnesses \u201cwho perceived an event that gave rise to a personal belief in some aspect of the defendant\u2019s guilt[,]\u201d id. at 344 (Kennedy, J., dissenting), and that the Confrontation Clause was not intended to include \u201canalysts who conduct scientific tests far removed from the crime and the defendant.\u201d Id. at 347 (Kennedy, J., dissenting).\nb. Bullcoming Holds That a Report Analyzing Blood and Certifying Its Alcohol Content Is Testimonial Hearsay\n{23} In Bullcoming, the state sought to admit a State Laboratory Division (SLD) Report of Blood Alcohol Analysis. 564 U.S. at _, 131 S. Ct. at 2710. The report contained a \u201ccertificate of analyst,\u201d which contained various statements by a lab technician who was unavailable to testify at the defendant\u2019s trial. Id. at_, 131 S. Ct. at 2710-12. The certificate of analyst stated that the blood-alcohol concentration (BAC) in the defendant\u2019s blood sample was 0.21 grams per hundred milliliters. Id. at_, 131 S. Ct. at 2710. The certificate also affirmed that the integrity of the sample had not been compromised and that the required procedures for handling and testing the sample had been followed. Id. at_, 131 S. Ct. at 2710-11.\n{24} Bullcoming ruled the certificate implicated the Confrontation Clause because \u201c[a] document created solely for an \u2018evidentiary purpose,\u2019 . . . made in aid of a police investigation, ranks as testimonial.\u201d Id. at_, 131 S. Ct. at 2717 (citing Melendez-Diaz, 557 U.S. at 311). Even though the certificate of analyst was unsworn, the laboratory analyst was required by statute to prepare the report when provided with a sample by law enforcement, certify the results of the test on a document, and further formalize the document by signing it on a form that makes reference to magistrate and municipal court rules for admitting the report into evidence. Bullcoming, 564 U.S. at_, 131 S. Ct. at 2717. The Supreme Court further noted that operation of the gas chromatograph testing machine \u201crequires specialized knowledge and training. Several steps are involved in the gas chromatograph process, and human error can occur at each step.\u201d Id. at _, 131 S. Ct. at 2711. These formalities and the amount of human discretion involved in the creation of the certificate, the Supreme Court concluded, were \u201cmore than adequate to qualify [the analyst\u2019s] assertions [in the certificate] as testimonial.\u201d Id. at 2717; see also State v. Huettl, 2013-NMCA-038, \u00b6 37, 305 P.3d 956 (\u201cWhat has emerged as clearly impermissible is an expert\u2019s testimony which is based solely upon a non-testifying analyst\u2019s analysis and conclusions.\u201d (citing Bullcoming, 564 U.S. at __, 131 S. Ct. at 2717-18)).\n{25} Again writing on behalf of the dissenting justices as in Melendez-Diaz, Justice Kennedy denounced as a \u201chollow formality\u201d the requirement that the technician who prepared the BAC report testify regarding \u201croutine authentication elements for a report that would be assessed and explained by in-court testimony subject to full cross-examination\u201d of the witness who had knowledge of the processes for authenticating the samples. Bullcoming, 564 U.S. at_, 131 S. Ct. at 2723-24 (Kennedy, J., dissenting).\nc. Williams Upholds the Admission of an Expert\u2019s Opinion That the Defendant\u2019s DNA Was Found on Swabs Taken From the Victim, But Does Not Offer a Controlling Rationale in Support of Its Holding\n{26} In Williams, 567 U.S.__, 132 S. Ct. 2221, the Supreme Court applied the Confrontation Clause to the admission of expert scientific testimony based on hearsay. The victim in Williams had been kidnapped and raped by an unknown assailant and was taken to a hospital. Id. at__, 132 S. Ct. at 2229. There, doctors treated the victim\u2019s wounds and took a blood sample and vaginal swabs, sealed the swabs, and submitted them to a crime lab for testing. Id. At the crime lab, a technician performed a chemical test on the swabs, confirmed the presence of semen, resealed the kit, and placed it in a secure freezer. Id. Police then sent the swabs from the victim to Cellmark Diagnostics Laboratory (Cellmark), which contracted with the state to perform DNA testing. Id. Cellmark tested the swabs and returned a report to the police containing a male DNA profile derived from semen found on the swabs. Id. The police matched the profile produced by Cellmark with an earlier profile derived from a sample taken as a result of the defendant\u2019s arrest years before. Id. The victim identified the defendant as her assailant during a lineup, and the state charged the defendant with rape, kidnapping, and aggravated robbery. Id.\n{27} The state did not call as witnesses the technicians at Cellmark who had actually developed a DNA profile from the samples collected from the victim\u2019s swabs. Id. Instead, the state called the forensic scientist who had used a chemical test to confirm the presence of semen on the vaginal swabs taken from the victim, a forensic analyst who had developed a DNA profile from the blood sample taken from the defendant when he was arrested in 2000, and a third expert who had compared this DNA profile with the profile created by Cellmark. Id. The third expert testified that the Cellmark profile matched the profile generated from the sample taken in 2000, stating both that it was common within the scientific community for experts to rely on records generated by other DNA experts, and that she and other experts in her field regularly relied on shipping manifests and other labels in assuming that the DNA evidence they analyzed was authentic. Id. at___, 132 S. Ct. at 2230.\n{28} The defendant challenged the admission of the expert\u2019s comparison of the two samples, arguing thatthe expert\u2019s reliance on testing performed by Cellmark\u2019s employees (who did not testify) violated the Confrontation Clause. Id. The state responded that the defendant\u2019s right was not violated because Defendant had an opportunity to cross-examine the analyst who had developed a profile from the 2000 sample and the analyst who had compared the results of the 2000 sample with the Cellmark profile. Id. at__, 132 S. Ct. at 2231. The state also argued that under Rule 703 of the Federal Rules of Evidence, \u201can expert is allowed to disclose the facts on which the expert\u2019s opinion is based even if the expert is not competent to testify to those underlying facts.\u201d Id. at__, 132 S. Ct. at 2231. The prosecutor concluded that \u201cany deficiency in the foundation for the expert\u2019s opinion doesn\u2019t go to the admissibility of that testimony, but instead goes to the weight of the testimony. \u201d Id. (alterations, internal quotation marks, and citation omitted). The trial court agreed and overruled the defendant\u2019s objection to the expert\u2019s comparison of the two DNA profiles. Id.\n{29} Williams rejected the defendant\u2019s arguments in a split opinion with no controlling rationale. A plurality of four justices\u2014the same four who dissented in Melendez-Diaz and Bullcoming\u2014would have held that the expert\u2019s testimony was not hearsay (and therefore not subject to scrutiny under the Confrontation Clause) because it was not offered for the truth of the matter asserted. Id. at__, 132 S. Ct. at 2236-41 (plurality opinion). This plurality reasoned as follows:\n[The] expert witness referred to the report not to prove the truth of the matter asserted in the report, i.e., that the report contained an accurate profile of the perpetrator\u2019s DNA, but only to establish that the report contained a DNA profile that matched the DNA profile deduced from petitioner\u2019s blood. Thus ... the report was not to be considered for its truth but only for the distinctive and limited purpose of seeing whether it matched something else. The relevance of the match was then established by independent circumstantial evidence showing that the . . . report was based on a forensic sample taken from the scene of the crime.\nId. at__, 132 S. Ct. at 2240-41 (internal quotation marks and citation omitted).\n{30} In the alternative, the plurality concluded that the defendant\u2019s Confrontation Clause right was not violated even if the Cellmark DNA analysis had been admitted into evidence to prove that the Defendant\u2019s DNA had been found in vaginal swabs from the victim because the analysis \u201cplainly was not prepared for the primary purpose of accusing a targeted individual.\u201d Id. at__, 132 S. Ct. at 2243 (plurality opinion). The plurality identified two non-testimonial purposes behind the DNA evidence: (1) \u201ccatch[ing] a dangerous rapist who was still at large\u201d; and (2) because the DNA analysis is divided among numerous technicians, \u201cit is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures},]\u201d not accusing the defendant of wrongdoing. Id. at _, 132 S. Ct. at 2243-44. The plurality also identified three factors that minimized any likelihood that the evidence had been fabricated: First, the plurality noted that \u201cno one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate [the defendant]\u2014or for that matter, anyone else whose DNA profile was in a law enforcement database.\u201d Id. Second, it is possible to detect whether the DNA sample used by Cellmark had been degraded based on the profile itself; it was not necessary to conduct an independent examination of the DNA swabs themselves. Id. at__, 132 S. Ct. at 2244. Third,\n[a]t the time of the testing, [the defendant] had not yet been identified as a suspect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceivable that shoddy lab work would somehow produce a DNA profile that just so happened to have the precise genetic makeup of [the defendant], who just so happened to be picked out of a lineup by the victim. The prospect is beyond fanciful.\nId. at__, 132 S. Ct. at 2244 (emphasis added).\n{31} Unlike in Melendez-Diaz and Bullcoming, Justice Thomas concurred with the previously dissenting justices and thereby provided the controlling fifth vote to affirm the Illinois Supreme Court\u2019s judgment upholding Defendant\u2019s conviction. He disagreed with the plurality\u2019s first conclusion that the Cellmark report was not hearsay. Id. at__, 132 S. Ct. at 2256 (Thomas, J., concurring in judgment). Justice Thomas wrote that \u201cstatements introduced to explain the basis of an expert\u2019s opinion are not introduced for a plausible nonhearsay purpose.\u201d Id. at__, 132 S. Ct. at 2257 (Thomas, J., concurring in judgment). He reasoned that\n[t]o use the inadmissible information in evaluating the expert\u2019s testimony, the jury must make a preliminary judgment about whether this information is true. If the jury believes that the basis evidence is true, it will likely also believe that the expert\u2019s reliance is justified; inversely, if the jury doubts the accuracy or validity of the basis evidence, it will be skeptical of the expert\u2019s conclusions.\nId. (internal quotation marks and citations omitted).\n{32} Justice Thomas concluded that the Cellmark report implicated the Confrontation Clause\u2014i.e., it was hearsay\u2014because the state\u2019s expert\u2019s opinion was entirely reliant on assertions in the Cellmark report that \u201cthe profile [Cellmark] reported was in fact derived from [the victim\u2019s] swabs, rather than from some other source.\u201d Id. at__, 132 S. Ct. at 2258 (Thomas, J., concurring in judgment). Justice Thomas nonetheless concurred in the result, because in his view \u201c[t]he Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained.\u201d Id. at__, 132 S. Ct. at 2260 (Thomas, J., concurring in judgment).\n{33} The four-justice dissent\u2014comprised of the Melendez-Diaz and Bullcoming majority but without Justice Thomas\u2014would have held the Cellmark report to be testimonial because it was \u201cidentical to the [blood sample report] in Bullcoming (and [the drug content test in] Melendez-Diaz) in all material respects.\u201d Id. at__, 132 S. Ct. at 2266 (Kagan, J., dissenting) (internal quotation marks and citation omitted). The dissent argued that the Cellmark report was \u201cmade to establish some fact in a criminal proceeding\u2014here, the identity of [the victim\u2019s] attacker.\u201d Id. (internal quotation marks and citation omitted). The dissent similarly reasoned that, like the gas chromatographical test for blood alcohol content in Bullcoming, \u201cthe Cellmark analysis has a comparable title; similarly describes the relevant samples, test methodology, and results; and likewise includes the signatures of laboratory officials.\u201d Id. at__, 132 S. Ct. at 2266-67 (Kagan, J., dissenting).\n{34} Amplifying the ideological split in Confrontation Clause analyses generated post-Crawford regarding scientific evidence, the plurality charged that the dissent would have no qualms with the prosecutor asking its expert whether \u201cthere [was] a computer match generated of the male DNA profile produced by Cellmark to a male DNA profile that had been identified as having originated from [the defendant.]\u201d Id. at__, 132 S. Ct. at 2236 (plurality opinion) (emphasis omitted); see also id. at__, 132 S. Ct. at 2267 (Kagan, J., dissenting). But because the prosecutor had instead asked the expert whether \u201cthere [was] a computer match generated of the male DNA profile found in semen from the vaginal swabs of [the victim] to a male DNA profile that had been identified as having originated from [the defendant],\u201d the dissent concluded that admitting the state\u2019s expert witness\u2019s testimony violated the defendant\u2019s Confrontation Clause right. Id. at__, 132 S. Ct. at 2236 (plurality opinion) (emphasis omitted); id. at__, 132 S. Ct. at 2267 (Kagan, J., dissenting).\n4. Under Bullcoming and Our Supreme Court\u2019s Controlling Interpretation of Williams, SANE Vandiver\u2019s Absence Requires the Exclusion of Ms. Williams\u2019 Expert Opinion That Defendant\u2019s DNA Was Found on Swabs Taken From P.W.\n{35} In Navarette, our Supreme Court read Williams to stand for (among others) the following propositions: (1) \u201cthat a statement can only be testimonial if the declarant made the statement primarily intending to establish some fact with the understanding that the statement may be used in a criminal prosecution]],]\u201d id. \u00b6 8; (2) \u201ceven if a statement . . . does not target a specific individual, the statement may still be testimonial!],]\u201d 2013-NMSC-003, \u00b6 10; and (3) \u201can out-of-court statement that is disclosed to the fact-finder as the basis for an expert\u2019s opinion is offered for the truth of the matter asserted},]\u201d id. \u00b6 13, and is therefore subject to exclusion if its primary purpose is testimonial.\n{36} Navarette answered whether the Confrontation Clause \u201cprecludefs] a forensic pathologist from relating subjective observations recorded in an autopsy report as a basis for the pathologist\u2019s trial opinions, when the pathologist neither participated in nor observed the autopsy performed on the decedent.\u201d Id. % 1. Our Supreme Court held that the statements were subject to exclusion because the autopsy was performed as part of a homicide investigation and the pathologist who had performed the autopsy had a statutory duty to report possible deaths by homicide to law enforcement. Id. \u00b6\u00b6 15-17. The Court reasoned that \u201cthe medical examiner\u2019s findings as to the cause of death and as to soot, stippling, and gunpowder all went to the issues of whether [the victim\u2019s] death was a homicide and, if so, who shot him. These issues reflected directly on [the defendant\u2019s] guilt or innocence.\u201d Id. \u00b6 17.\n{37} Here, the basis for Ms. Williams\u2019 opinion that Defendant\u2019s DNA was found on P.W.\u2019s body is SANE Vandiver\u2019s hearsay statements that the swabs came from P.W. As our Supreme Court noted, such \u201cbasis\u201d evidence amounts to the admission of out-of-court statements to prove the truth of the matter they assert (i.e., to prove that the DNA was found on P.W.\u2019s body) and therefore must be subjected to Confrontation Clause scrutiny. See id. \u00b6 13. We are not persuaded by the State\u2019s argument that Ms. Williams relied on the swabs themselves, not SANE Vandiver\u2019s statements on the envelopes containing the swabs. Had Ms. Williams testified that she had found Defendant\u2019s DNA on swabs (and did not disclose that the swabs were taken from P.W.), her testimony would be irrelevant because it would not make it any more or less probable that Defendant had in fact touched P.W. See Rule 11-401(A) (\u201cEvidence is relevant if it. . . has any tendency to make a fact more or less probable than it would be without the evidence}.]\u201d). It is Ms. Williams\u2019 reliance on the statements identifying P.W. as the source of the swabs that supplies relevance to Ms. Williams\u2019 expert testimony. Without SANE Vandiver\u2019s statements linking the swabs Ms. Williams tested to the examination of P.W. (and the portions of P.W.\u2019s body on which a swab was used), Ms. Williams\u2019 testimony would be that Defendant\u2019s DNA was found on various swabs of unknown origin.\n{38} The context of SANE Vandiver\u2019s examination of P.W. leaves no doubt that the statements were made with the primary purpose of establishing a fact\u2014that Defendant\u2019s DNA was found on P.W.\u2014for use in a future criminal proceeding against D efendant. See Navarette, 2013 -NMSC-003, \u00b6 8 (\u201c[A] statement can only be testimonial if the declarant made the statement primarily intending to establish some fact with the understanding that the statement may be used in a criminal prosecution.\u201d) First, P.W. had already identified Defendant as the one who touched her inappropriately before she was examinedby SANE Vandiver, so it cannotbe argued that the swabs were used in order to identify and apprehend P.W.\u2019s unknown, dangerous assailant. Second, because P.W. was not in need of emergency medical treatment, there is no basis to conclude that the swabs were taken in \u201csurrounding circumstances\u201d that suggest a nontestimonial primary purpose. See State v. Mendez, 2010-NMSC-044, \u00b6\u00b6 37-39, 148 N.M. 761, 242 P.3d 328 (holding that a hearsay statement made to a SANE by a victim who testifies at trial is admissible under Rule 11-803(4) NMRA based upon the statement\u2019s medical purpose despite the otherwise primarily testimonial purpose of a SANE examination). Third, as Ms. Monahan testified, the \u201cprimary purpose\u201d of the SANE kits was to create reliable, consistent DNA evidence for testing and use in future criminal prosecutions. As was the case with the medical examiner in Navarette, SANE Vandiver would have reasonably expected that her collection of swabs from P.W. and her placement of those swabs in envelopes labeled \u201cvagina,\u201d and \u201canus,\u201d all go to the issue of whether Defendant improperly touched P.W., and therefore \u201creflect]] directly on [Defendant\u2019s] guilt or innocence.\u201d 2013-NMSC-003, \u00b6 17.\n{39} In recently addressing nearly identical circumstances in Commonwealth v. Jones, 37 N.E.3d 589 (Mass. 2015), the Supreme Judicial Court of Massachusetts was asked whether the Confrontation Clause permitted \u201cthe [cjommonwealth to introduce, through the testimony of an expert witness who was not present when the victim\u2019s \u2018rape kit\u2019 examination was performed, evidence concerning how the various swabs that the expert tested were collected.\u201d Id. at 592. Jones, like this case, involved allegations that the defendant had touched the alleged victim\u2019s genitals. Id. at 594. And as is the case here, the commonwealth in Jones sought to prove the defendant\u2019s guilt by offering expert opinion testimony that the defendant\u2019s DNA was found in the area surrounding the alleged victim\u2019s genitals. Id. Finally, like the State here, the commonwealth in Jones did not offer at trial the testimony of the nurse who personally examined the alleged victim. Id. at 595. Rather, the trial court \u201cpermitted the [c]ommonwealth\u2019s first expert witness, who was not present during the examination . . . to testify to her \u2018understanding\u2019 of how the three swabs had been collected.\u201d Id. Like Ms. Williams here, the commonwealth\u2019s expert\u2019s \u201cunderstanding\u201d of how the three swabs were collected was \u201cbased ... on information the expert learned from the \u2018evidence collection inventory list\u2019 purportedly completed by the nurse who conducted the \u2018rape kit\u2019 examination.\u201d Id.\n{40} Citing the same Supreme Court authority our Supreme Court in Navarette applied and we apply today, compare Navarette, 2013-NMSC-003, \u00b6\u00b6 7-21, with Jones, 37 N.E.3d at 596, 600, thq Jones court found that the defendant\u2019s Confrontation Clause rights were violated because the statements identifying various swabs and the inventory list affixed to the \u201crape kit\u201d were in essence \u201ca series of factual statements concerning how the various swabs were collected.\u201d Jones, 37 N.E.3d at 596. The court reasoned that these statements were \u201cplainly testimonial\u201d because \u201c \u2018a reasonable person in the speaker\u2019s position would anticipate his findings and conclusions being used against the accitsed in investigating and prosecuting a crime[.]\u2019 \u201d Id. at 597 (alterations omitted) (quoting Clark,_U.S. at_, 135 S. Ct. at 2181). Applying both the United States and our Supreme Court\u2019s controlling interpretations of the Confrontation Clause, the same logic applies in this case with equal force. SANE Vandiver\u2019s statements on the labels affixed to the kit are testimonial hearsay because SANE Vandiver would have reasonably understood those statements\u2019 sole purpose to be for use in investigating and prosecuting criminal charges against Defendant. Allowing Ms. Williams to testify that Defendant\u2019s DNA had been found on P.W. based on inferences from labels on the examination kit prepared by SANE Vandiver \u201cwould be akin to allowing a chemist to testify to the chemist\u2019s \u2018understanding,\u2019 based on information relayed to the chemist in a report drafted by nontestifying police officers, that a substance later determined to be cocaine had been found in the defendant\u2019s trouser pocket.\u201d Jones, 37 N.E.3d at 598.\n{41} In support of its argument that introduction of Ms. Williams\u2019 expert testimony would not violate the Confrontation Clause, the State cites Fencher v. State, 931 So. 2d 184, 186-87 (Fla. Dist. Ct. App. 2006), which held that the admission of an expert\u2019s analysis of DNA found on a rape kit collected by an unavailable SANE nurse did not violate the defendant\u2019s Confrontation Clause right. But Fencher was decided before the Supreme Court had considered the Confrontation Clause implications of scientific evidence and expert testimony in Melendez-Diaz, Bullcoming, and Williams. Moreover, Fencher\u2019s holding is based on the rationale that the SANE nurse \u201cmerely procured the samplesf;]\u201d while others secured a chain of custody and provided the basis for the expert\u2019s conclusion that Defendant\u2019s DNA was found on the victim. 931 So. 2d at 187. Bullcoming expressly rejects this rationale; the SANE nurse who collects samples, like a police officer who notes the speed of a car using a radar gun or a technician who operates a gas chromatograph machine, is not a \u201cmere scrivener.\u201d 564 U.S. at_, 131 S. Ct. at 2714.\nCONCLUSION\n{42} The relevance and admissibility of Ms. Williams\u2019 expert testimony that Defendant\u2019s DNA was found on P.W. is based entirely on her reliance on testimonial hearsay identifying P.W., and locations ofherbody, as the source of evidence collected upon the swabs Ms. Williams later tested. Because the declarant of those statements\u2014SANE Vandiver\u2014is unavailable to testify, allowing Ms. Williams to offer her opinion to the jury would violate Defendant\u2019s rights under the Confrontation Clause of the Sixth Amendment. We therefore affirm the district court\u2019s order granting Defendant\u2019s motion to suppress evidence. The case is remanded to the district court for further proceedings.\n{43} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nLINDA M. VANZI, Judge", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellant", "Jorge A. Alvarado, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellee" ], "corrections": "", "head_matter": "Certiorari Denied, May 11, 2016,\nNo. S-1-SC-35851\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-050\nFiling Date: March 17, 2016\nDocket No. 33,378\nSTATE OF NEW MEXICO, Plaintiff-Appellant, v. MARIO CARMONA, Defendant-Appellee.\nHector H. Balderas, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellant\nJorge A. Alvarado, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellee" }, "file_name": "0707-01", "first_page_order": 723, "last_page_order": 736 }