Available here. Judge Ryan wrote the majority opinion. Judge Baker, joined by Judge Stucky, concurred in part and dissented in part.
The majority held that not only the cover memorandum, but also the specimen custody document, “were plainly and obviously testimonial.” CAAF reversed NMCCA’s holding and remanded for a harmless error determination.
Where, as here, an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information.
Thus, “recent case law from this Court and the Supreme Court requires an examination of individual statements that goes beyond Magyari.”
CAAF concluded that it was “plain and obvious error to admit the specimen custody document certification.” CAAF explained:
This certification is a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” See Bullcoming, 131 S. Ct. at 2715 (holding that the out-of-court declarant “certified to more than a machine-generated number” when the statements included affirmations regarding accuracy and compliance with laboratory protocol). Such a formal certification has no purpose but to function as an affidavit. Because the declarant, “R. Flowers,” was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause.
The majority held that “we do not find that the stamps, signatures, and other notations on the chain of custody documents and data review sheets, or the results report summary are ‘plainly and obviously’ testimonial in the context of review for plain error.” But the majority cautioned that “[a]n objection at trial, followed by more extensive development of the evidence and argument on its nature, might
tip the balance the other way in an appropriate case.”
Unfortunately I’m under the gun big time tonight, so either one of my CAAFlog colleagues will provide further details or I’ll offer more thoughts about the opinion later in the week.