Another significant unpublished NMCCA opinion was United States v. United States v. Porter, No. NMCCA 201100188 (N-M. Ct. Crim. App. Apr. 26, 2011). While agreeing unanimously that a Confrontation Clause violation occurred, the panel split 2-1 as to prejudice. Senior Judge Maksym wrote the majority opinion for himself and Senior Judge Payton-O’Brien. Judge Lutz dissented.

The accused was in a car crash off base near MCAS Cherry Point and taken to a civilian hospital. The doctors performed toxicology tests that indicated drug use. The next day, the accused went to a military medical facility where doctors suspected he was still under the influence of drugs and ordered toxicology reports for medical reasons. Those tests were positive for cocaine and marijuana.  The accused’s CO then ordered a probable cause seizure and search of the accused’s blood and urine to test for evidence of drug use.  CID sent the samples to the Armed Forces Institute of Pathology (AFIP) for testing. AFIP determined that the samples were positive for cocaine and marijuana.

An AFIP expert witness with no involvement in the analysis or review of the accused’s sample and no supervisory role at the lab showed up to testify at the accused’s military judge alone special court-martial.  The government offered a 169-page report that included the signatures of analysts and a reviewer who weren’t present at trial.  The defense counsel objected on Confrontation Clause grounds.  The military judge admitted the exhibit into evidence over the defense’s objection.

Applying CAAF’s Sweeney decision, NMCCA held that it must review each statement in the lab report to determine whether it would be reasonably foreseeable to an objective that the statement would be used as evidence at a later trial.

The particular portions of the report at issue in Porter were signature blocks on two pages of the drug testing report, one preceded by the words “ANALYZED BY” and the other “REVIEWED BY.” The former had a typed name in the signature block while the latter contained an actual signature.  The opinion explained:

Immediately above these signature blocks are the test results and then the words “CONTROL(S) AND STANDARD(S) WITH TOXNO: 10-4748.” This information seems to indicate that the analyst and reviewer were ensuring quality control by checking the “CONTROL(S)” and “STANDARD(S)” of the tests performed on the appellant’s blood and urine. . . .  The typed and printed signatures following the “ANALYZED BY:” and “REVIEWED BY:” can serve no other purpose in our view than to certify that the “CONTROL(S) and STANDARD(S)” in the appellant’s tests were met, particularly as the test results, the “CONTROL(S) AND STANDARD(S)” language, and the signature blocks follow in direct sequence. As certifications, pages 54 and 154 are properly considered statements rather than mere technical data.


Porter, slip op. at 5-6 (internal citations omitted).

NMCCA then held that those statements were “testimonial.”  The court explained:

The appellant’s blood and urine were tested for alcohol and drugs at the specific request of his commanding officer, who suspected the appellant of being under the influence of alcohol or drugs. The samples were sent to the AFIP by criminal investigators, as opposed to the command urinalysis coordinator. Most importantly, the AFIP expert, Dr. Shippee, testified that the technicians knew the purpose of each test based on the nature of the sample.  According to Dr. Shippee, upon receiving a package:

[“]They then log it into a book, and they open up the specimen and they determine what it is. If it is postmortem, you are probably going to (sic) tissue that you have the (sic) process. So that would have to be laid out. If it is a criminal investigation, it will be urine and blood.[“]

The AFIP technicians, according to the AFIP expert, know at the start of the testing process which samples are destined for use as evidence in criminal investigations. In other words, it would have been “reasonably foreseeable to an objective person that the purpose of any individual statement in a drug testing report is evidentiary.” Sweeney, 70 M.J. at 302. As such, these statements, memorialized on pages 54 and 154 of PE 15, must be considered testimonial in nature.

Id., slip op. at 6.  The court then held that the presence at trial of an AFIP expert with no involvement in the testing didn’t satisfy the accused’s right to confrontation. 

Having found error, the majority then did something odd.  Remember that earlier in the opinion, the court told us that “[w]hile detailed defense counsel objected that the exhibit violated the Confrontation Clause, the trial judge admitted PE 15 into evidence.”  Id., slip op. at 3.  The very error the majority found was properly preserved by the defense, so the findings and sentence must be reversed unless the government demonstrates that the violation of the accused’s Sixth Amendment right to confront his accusers was harmless beyond a reasonable doubt.  See, e.g., United States v. Blazier, 69 M.J. 218, 226 (C.A.A.F. 2010).  But the Portermajority applied the plain error test instead.  Porter, slip op. at 7.  The majority wrote:  “Having found that the statements were in fact testimonial we must now consider whether it was plain error to have admitted them. Under plain error review, this court will grant relief where (1) there is error; (2) the error is plain and obvious, and (3) the error materially prejudiced a substantial right of the accused.”  The majority’s use of the wrong prejudice analysis didn’t end up prejudicing the accused, though, because it held that the Confrontation Clause error required reversal of the findings and sentence.

Judge Lutz agreed that the two pages of the report, as well as the expert witness’s testimony about those pages, was erroneously admitted.  But, without repeating the majority’s erroneous prejudice standard, Judge Lutz opined that that evidence’s admission was harmless beyond a reasonable doubt.  The dissent relied on a portion of the AFIP report and the expert witness’s testimony about that portion that was not the subject of a defense objection, as well as testimony concerning the results of the toxicology reports that had been ordered for medical reasons.

One Response to “A couple of significant unpublished NMCCA decisions Part II: signature and typed name on AFIP report were testimonial statements”

  1. Zachary Spilman says:

    Thinking about this issue, and reading the opinion, I’m at a loss to understand the basis for admissibility of this 169-page document. It’s not a business record, because it was prepared at the request of the commander for the purpose of criminal prosecution. So, why not just “objection, hearsay”?