In United States v. Sweeney, 70 M.J. 296 (C.A.A.F., 2011), CAAF found that portions of a urinalysis specimen custody document were “plainly and obviously testimonial,” and that their admission constituted plain error. In its recent opinion in United States v. Alicea, No. 201100366 (N-M Ct. Crim. App., January 12, 2012) , the N-MCCA applied Sweeney to find that certain notations on the urinalysis specimen custody document present formalized, conclusory affirmations.
In addition to reporting the official test result for any positive sample in Block G, Block H certifies “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” In the instant case, Block G reflected that the appellant’s sample tested positive for “cocaine,” and Block H was signed by two Final Certifying Laboratory Officials (FCLOs), LT L.A. Estralla, who was in training, and R. Flowers.
Slip op. at 3.
In the instant case, Blocks G and H of the specimen custody document, present a formalized, conclusory affirmation that is identical to the certification in Sweeney. Consequently, we find these two portions of the specimen custody document to be testimonial hearsay and their admission, over defense objection, to be in error: the FCLOs who signed the attestation were not subject to cross-examination, and the testimony of Mr. Sroka as a substitute or surrogate witness did not satisfy the Confrontation Clause. Moreover, the testimony of Mr. Sroka concerning the certification was also admitted in error, as an expert may not act as a conduit for repeating the inadmissible testimonial hearsay of another.
Slip op. at 5.
The exclusion of Block G is significant, as it appears to be a summary of the underlying findings. At this rate, the excluded portions of a urinalysis report may soon exceed the admissible.