2006-013, STATE OF NH v. BRIAN T. O'MALEY

Following a bench trial in Derry District Court (Coughlin

Paul J. Garrity

___________________________ Road in Derry, when he crashed into a telephone pole and mailbox post, seventeen-year-old defendant was driving his father’s vehicle on Mammoth The record supports the following: On August 1, 2005, the then-

(Supp. 2006). We affirm. influence of intoxicating liquor (DWI). See RSA 265:82 (2004); RSA 265:82-b J.), the defendant, Brian T. O’Maley, was convicted of driving while under the

THE SUPREME COURT OF NEW HAMPSHIRE defendant.

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 II. Compliance with Administrative Regulations

necessary,” State v. Wall

“Because we decide cases upon constitutional grounds only when

regulations. show that his blood was collected and tested in accord with applicable 2 about the blood test results into evidence was error because the State failed to Confrontation Clauses. He also asserts that admitting Dr. Wagner’s testimony defendant’s assertion that the trial court erred when it admitted Dr. Wagner’s admitted at trial, the trial court violated his rights under the State and Federal collection form and Dr. Wagner’s testimony about the blood test results to be, 154 N.H. 237, 244 (2006), we begin with the On appeal, the defendant argues that by allowing the blood sample was placed in a refrigerated locker. See The officer then took the blood sample to the police department, where it

and in accordance with Administrative Rule He-P 2202.” See the defendant “for the purpose of analysis as authorized under RSA 265:85, I, was taken, and stated that the technician had withdrawn a blood sample from identified the non-alcoholic cleanser used on the area from which the blood collection form. The form indicated the technician’s name, title and employer, technician then drew the blood sample and completed a blood sample agreed to have blood drawn for an alcohol concentration test. A medical form with the defendant and his parents. The defendant signed the form and nor the analyst who originally tested it testified at trial. At the hospital, an officer reviewed an administrative license suspension one hundred milliliters or “a .14.” Neither the technician who drew the blood prepared, showed that the defendant’s blood alcohol content was .14 grams per 6402.12, 6402.14. Dr. Wagner testified that the final report, which he value of the blood test results. See N.H. Admin. Rules, Saf-C 6402.11, complied with applicable administrative rules, and calculated the reported director, reviewed the test results to ensure that both the sample and results Rules, Saf-C 6402.07-6402.10. Dr. Michael Wagner, the assistant laboratory Concord, where, on August 16, 2005, an analyst tested it. See N.H. Admin. August 5, 2005, the sample was taken to the state police forensic laboratory in

He-P 2202). (2004); see also N.H. Admin. Rules, Saf-C 6402.2 (formerly N.H. Admin. Rules,

ambulance to a hospital for treatment. Eventually, the police arrested the defendant for DWI and transported him by emanating from him and that he said that he had been drinking and driving. officers who spoke with him testified that they detected an odor of alcohol defendant and a severely damaged vehicle at his parents’ home. The two injuring his head and damaging the vehicle. The Londonderry police found the regulations. See p. 3 that the defendant’s blood was collected in compliance with applicable By submitting the blood sample collection form, the State sufficiently proved

V. commissioner of the department of safety pursuant to RSA 265:85,

the procedures prescribed in the rules adopted by the

by such person at the stated time on the stated date according to

question shall be admissible evidence that the sample was taken person who took the sample for the alcohol concentration test in A copy of the appropriate form filled out and signed by the

submitting the blood sample collection form. This statute provides: blood, RSA 265:90, IV permits the State to satisfy its burden of proof by sample. satisfied applicable regulations. To the contrary, with respect to collecting his that these regulations were followed with respect to the defendant’s blood his blood did not testify, the State failed to prove that the collection and testing incorporated into how the laboratory processes the sample. He further testified

regarding how blood samples must be handled and tested have been The defendant asserts that because the people who collected and tested administrative rules promulgated by the New Hampshire Department of Safety results met applicable State regulations. He also testified that the qualifying tests were run before the sample was tested to ensure that the test With respect to testing the blood, Dr. Wagner testified that certain 3

RSA 265:90, IV; see also N.H. Admin. Rules, Saf-C 6402.02.

exercise of discretion.” State v. Belton safety.” rulings and will only intervene when they demonstrate an unsustainable accordance with methods prescribed by the commissioner of the department of “Generally, we accord considerable deference to a trial court’s evidentiary before any administrative officer or court unless such test is performed in authorized by RSA 265:84 shall be considered as evidence in any proceeding RSA 265:85, IV (2004) provides, in pertinent part, “No tests of blood . . .

prejudice of the party’s case, it will not be disturbed.” Belton, 150 N.H. at 743. establishes that such a ruling was clearly untenable or unreasonable to the judgment made.” State v. Lambert, 147 N.H. 295, 296 (2001). “Unless a party record establishes an objective basis sufficient to sustain the discretionary U.S. 674 (2004). Under this standard of review, we review only whether “the

applicable regulations. demonstrate that the blood was collected and tested in compliance with testimony about the blood test results into evidence because the State failed to intoxicating liquor.” State v. Wiggin p. 4 attempted to drive a vehicle upon a way while he was under the influence of was required to prove beyond a reasonable doubt that the defendant drove or “[T]o prove the defendant guilty of driving while intoxicated, the State

The defendant was involved in a single-car accident and admitted to having The alternative evidence of the defendant’s guilt included the following:

degree.” Wiggin, 151 N.H. at 309 (quotations omitted). influence of intoxicating liquor, the State need only prove impairment to any omitted); see RSA 265:82, I. “To prove that the defendant was under the

affected by the error. State v. Pseudae only if it is determined, beyond a reasonable doubt, that the verdict was not but [did] not determine its admissibility.” State v. Caswell results constituted harmless error. It is well settled that an error is harmless proof of compliance with the regulations “affect[ed] the weight of the evidence harmless error. blood sample collection form and Dr. Wagner’s testimony about the blood test We next address the State’s assertion that any error in admitting the inadmissible evidence itself. Id. We hold that the State has failed to establish alternative evidence presented at trial as well as the character of the the State’s evidence of guilt. Id. In making this determination, we consider the evidence is merely cumulative or inconsequential in relation to the strength of guilt is of an overwhelming nature, quantity or weight and if the inadmissible harmless beyond a reasonable doubt if the alternative evidence of a defendant’s bears the burden of proving that an error is harmless. Id. An error may be

Whatever deficiencies or weaknesses there might have been in the State’s

regulations. prove that the collection and the testing of the blood complied with pertinent not err by admitting the blood test results on the ground that the State failed to (2001) (quotation omitted). Accordingly, we conclude that the trial court did

6402.10. defendant’s blood sample that is required by N.H. Admin. Rules, Saf-C the analyst recorded all of the information related to the testing of the of these steps had been completed. Dr. Wagner’s testimony also indicated that See id. Upon review of the analyst’s notes at trial, Dr. Wagner testified that all forth the various steps in the process by which a blood sample must be tested. tested by gas chromatography. N.H. Admin. Rules, Saf-C 6402.09. It also sets that a blood sample submitted for determination of alcohol concentration be requirements pertaining to blood tests for alcohol concentration. It requires For instance, N.H. Admin. Rules, Saf-C 6402.09 sets forth the p. 5 B. Federal Constitution

A. State Constitution was harmless beyond a reasonable doubt. See sample collection form and Dr. Wagner’s testimony about the blood test results Given this record, we cannot conclude that the admission of the blood with the witnesses against him.” Relying upon Crawford v. Washington criminal prosecutions, the accused shall enjoy the right . . . to be confronted The Sixth Amendment to the Federal Constitution provides, “In all

the testimony of those who withdrew and tested his blood or proof of their collection form and Dr. Wagner’s testimony about the blood test results, absent U.S. 36, 68 (2004), the defendant asserts that admitting the blood sample

brief. State v. MacElman IV. Constitutional Issues court; and (2) specifically invoke a State constitutional provision in his or her analysis, an appellant must: (1) raise the state constitutional issue in the trial his State Confrontation Clause argument. To trigger a state constitutional We begin with the State’s argument that the defendant has not preserved Clause. argument and limit our review to his claims under the Federal Confrontation (1986). We, therefore, decline to consider his State Confrontation Clause Confrontation Clauses. argument for appellate review. See State v. Dellorfano, 128 N.H. 628, 633 grounds, we next address the defendant’s claims under the State and Federal court, we conclude that he has not preserved his State Confrontation Clause Because we are unable to resolve this appeal on non-constitutional has failed to demonstrate that he raised a state constitutional issue in the trial any field sobriety tests., 154 N.H. 304, 310 (2006). Because the defendant appear to be red or glassy. Moreover, the defendant was not asked to complete swaying. One of the officers also testified that the defendant’s eyes did not On the other hand, both officers testified that the defendant was not

merely cumulative or inconsequential. See Pseudae, 154 N.H. at 202. overwhelming that the blood sample collection form and blood test results were 733-35 (2003). The alternative evidence of the defendant’s guilt was not so

defendant’s person. responded sometime later testified that she also smelled alcohol on the detected a strong odor of alcohol coming from his person. Another officer who been drinking and driving. The officer who first responded to the scene class of ‘testimonial’ statements,” which included: (1) “ex p. 6 6 The Court observed that there were “[v]arious formulations” of the “core The crucial determination under Crawford

circumstances which would lead an objective witness reasonably to believe that testimony, or confessions”; and (3) “statements that were made under formalized testimonial materials, such as affidavits, depositions, prior expect to be used prosecutorially”; (2) “extrajudicial statements contained in cross-examine, or similar pretrial statements that declarants would reasonably custodial examinations, prior testimony that the defendant was unable to testimony or its functional equivalent – that is, material such as affidavits,

person who makes a casual remark to an acquaintance does not.” Id. formal statement to government officers bears testimony in a sense that a proving some fact.” Id. (quotations omitted). Thus, “[a]n accuser who makes a a solemn declaration or affirmation made for the purpose of establishing or Crawford, 541 U.S. at 51 (quotation omitted). “Testimony, in turn, is typically explained the court in Crawford, is a person who “bear[s] testimony.” meaning of the Confrontation Clause. Davis, 12 p. 6 6 S. Ct. at 2273. A witness, “testimonial” statements cause a declarant to be a “witness” within the 1. Crawford and Davis not. Id In Crawford. at 51; see Davis v. Washington, 126 S. Ct. 2266, 2273 (2006). Only statement violates the Confrontation Clause is whether it is “testimonial” or

p. 6 61. of the rules of evidence, much less to amorphous notions of ‘reliability.’” Id. at the Framers meant to leave the Sixth Amendment’s protection to the vagaries court explained, “Where testimonial statements are involved, we do not think opportunity to cross-examine him or her. Crawford, 541 U.S. at 68. As the Before Crawford Clause unless the witness is unavailable at trial and the defendant had a prior testimonial statements are inadmissible under the Federal Confrontation

, the court overruled Roberts, holding that out-of-court

_____ (U.S. Apr. 2 p. 6 6, 2007) (No. 06-11028). see State v. Ayer, 154 N.H. 500, 505 (2006), petition for cert. filed, __ U.S.L.W. hearsay exception,” or bore “particularized guarantees of trustworthiness.” Id.; inferred without more in a case where the evidence [fell] within a firmly rooted Roberts, 448 U.S. 56, 66 (1980) (quotation omitted). “Reliability [could] be Clause provided that they bore “adequate indicia of reliability.” Ohio v. admitting certain out-of-court statements did not violate the Confrontation

XIV. rights under the Federal Confrontation Clause. See U.S. CONST. amends. VI, unavailability and his opportunity for prior cross-examination, violated his p. 7 Davis Whether statements during a police interrogation are “testimonial,” the 7

the course of police interrogation under circumstances objectively indicating S. Ct. at 2273-74. By contrast, “[s]tatements are nontestimonial when made in potentially relevant to later criminal prosecution,” are testimonial. p. 7 Davis, 126 primary purpose of the interrogation is to establish or prove past events In Davis objectively indicate that there is no . . . ongoing emergency, and that the ___ (Cal. 2007). Only those statements that are made “when the circumstances were given. See id. at 2273, 2276-79; see also People v. Geier, 161 P.3d 104, Court explained, depends upon the circumstances under which they

order to identify (or provide evidence to convict) the perpetrator.” Id. at 2276. Crawford was one “solely directed at establishing the facts of a past crime, in Court explained that the kind of interrogation it had in mind when it decided police interrogation are “testimonial.” See p. 7 Davis, 126 S. Ct. at 2273. The see id. at 68, arguably indicating otherwise, not all statements made during At issue in Crawford, the Court further clarified that, despite language in Crawford,

Id. at 53 n.4. any definition.” p. 7 Davis police questioning, qualifie[d] [as testimonial] under any conceivable definition.” unnecessary to endorse any of them, because some statements qualify under This statement, the Court observed, “knowingly given in response to structured Although the Court set forth these formulations, “[it] found it violated the petitioner’s rights under the Confrontation Clause. Id. at 66, 69. admitted against a criminal defendant, and ruled that its admission had claim.” Id. at 65. The Court likened this statement to ex parte testimony petitioner] in [a] stabbing and at least arguably undermined his self-defense response to often leading questions from police detectives, she implicated [the the petitioner’s wife had made while in police custody. Id. at 38, 65. “In

era rhetoric decried.” Id. at 50. notorious treason cases like [Sir Walter] Raleigh’s . . . [and] that the foundingaccused.” Id. at 50. “It was these practices that the Crown deployed in ex parte examinations [conducted by judicial officers] as evidence against the Court, “was the civil-law mode of criminal procedure, and particularly its use of principal evil at which the Confrontation Clause was directed,” explained the abuses at which the Confrontation Clause was directed.” Id. at 68. “[T]he definition of the term. See id. at 52, 68. They have the “closest kinship to the kinds of statements, the Court reasoned, were “testimonial” under any a former trial; and to police interrogations.” Crawford, 541 U.S. at 68. These minimum to prior testimony at a preliminary hearing, before a grand jury, or at ruled that “[w]hatever else the term [testimonial] covers, it applies at a

(quotations and ellipsis omitted). the statement would be available for use at a later trial.” Id. at 51-52 p. 8 By contrast, the statements that were the product of the Hammon

not indeed the sole, purpose of the interrogation was to investigate a possible 2278. These circumstances, objectively viewed, showed that the “primary, if tranquil nor safe. Id seeking to determine what was happening, but what had happened. Id. at victim was answering questions frantically, in an environment that was neither no emergency in progress; and (3) the officer questioning the victim was not emergency, rather than to learn what had happened in the past; and (4) the was part of an investigation into possible criminal past conduct; (2) there was interrogation were testimonial, the Court ruled, because: (1) the interrogation

omitted). said was not a weaker substitute for live testimony at trial.” Id. (quotation did not produce testimonial statements, while the interrogation in Hammon victim “simply was not acting as a witness; she was not testifying. What she The Court ruled that the interrogation that took place during the 911 call assistance to meet an ongoing emergency.” Id. at 2277. In this context, the indicated that the “primary purpose” of the interrogation was to “enable police

emergency; (3) the statements were necessary to resolve the ongoing any reasonable listener would recognize that the victim was facing an ongoing events as they were actually happening, rather than describing past events; (2) 911 call were not testimonial because: (1) the victim was speaking about did. Id. at 2276-79. The Court found that the statements made during the In the second case, Hammon v. Indiana

were admitted into evidence. Id. at 2272-73. the victim did not appear and her affidavit and oral statements to the police that the defendant had physically assaulted her. Id. At the defendant’s trial, the victim and then had her fill out and sign an affidavit in which she alleged defendant that he and the victim had had an argument, the police questioned “nothing was the matter.” Id. (quotations omitted). After learning from the 2272. While appearing “somewhat frightened,” she told the police that domestic disturbance, and found the victim alone on the front porch. Id Davis. at , police responded to a report of a

appear and the tape of her 911 call was admitted into evidence. Id. belongings. Id. (quotation omitted). At the assailant’s trial, the victim did not her in a “shaken state,” with “fresh injuries,” frantically trying to gather her at 2271. When the police arrived within four minutes of the call, they found described the attack while it was occurring and answered other questions. Id. disturbance with her former boyfriend. Davis, 126 S. Ct. at 2270-71. She Washington, a woman made a 911 call while in the midst of a domestic victims of domestic violence to police inquiries. In the first, Davis v.

involved two consolidated cases, both involving responses by

meet an ongoing emergency.” Id. at 2273. that the primary purpose of the interrogation is to enable police assistance to p. 9 Crawford Neither test persuades us as each rests upon a misinterpretation of

. While p. 9 Crawford mentioned whether a statement was “made under

(breath test machine certification), review denied, 132 P.3d 28 (Or. 2006). 127 S. Ct. 1374 (2007); State v. Norman, 125 P.3d 15, 19 (Or. Ct. App. 2005) in p. 9 Crawford State v. Craig, 853 N.E.2d 621, 638 (Ohio 2006) (autopsy reports), cert. denied, Other courts have developed a different bright line test based upon dicta (2006); State v. Dedman, 102 P.3d 628, 636 (N.M. 2004) (blood test results); 629 S.E.2d 137, 143-44 (N.C.) (DNA analysis), cert. denied, 127 S. Ct. 557 827 N.E.2d 701, 705 (Mass. 2005) (drug certificate of analysis); State v. Forte, report), cert. granted, 2006 WL 2338141 (Colo. Aug. 14, 2006); Com. v. Verde, People v. Hinojos-Mendoza, 140 P.3d 30, 37 (Colo. Ct. App. 2005) (laboratory courts in other jurisdictions have. We look to their decisions for guidance. and the like are not testimonial because they constitute business records. See blood tests upon which Dr. Wagner based his testimony are “testimonial,” U.S. at 56. Some courts have seized upon this to rule that laboratory reports such as the blood sample collection form and laboratory tests such as the business records or statements in furtherance of a conspiracy.” Crawford, 541 covered statements that by their nature were not testimonial – for example, when the Federal Constitution was drafted, “[m]ost of the hearsay exceptions

regarding business records. In p. 9 Crawford, the Court noted that

(laboratory report showing presence of drugs in defendant’s urine). certification); State v. Miller, 144 P.3d 1052, 1058 (Or. Ct. App. 2006) Renshaw, 915 A.2d 1081, 1087 (N.J. Super. Ct. App. Div. 2007) (blood sample 2006) (laboratory report identifying substance seized as cocaine); State v. have been met.” Id.; see State v. Caulfield, 722 N.W.2d 304, 309-10 (Minn. inadmissible unless the conditions for its admission, outlined in p. 9 Crawford, – is prepared for possible use at a criminal trial it is testimonial and Although we have not yet had occasion to decide whether documents analysis, autopsy reports, serology reports, drug analysis reports, DNA reports 2. Determining Whether Statement is Testimonial ___. “Thus, these courts conclude[ ] that because such evidence – fingerprint characteristic of whether such statements are testimonial.” Geier, 161 P.3d at court statements for later trial and concluded that this is the defining line test based on language in [Crawford] about the availability of the out-of-

examination; they are inherently testimonial.” Id. testimony, because they do precisely what a witness does on direct statements under official interrogation are an obvious substitute for live and were given some time after the events described were over. Id. “Such police questioning, how potentially criminal past events began and progressed” crime.” Id. The victim’s statements “deliberately recounted, in response to p. 10 10

We find the opinion of the California Supreme Court in Geier Court disagreed. Geier narrow one. In Crawford, 161 P.3d at ___. (quotation omitted); see Id Crawford, 541 U.S. at 52. The California Supreme the statement would be available for use at a later trial.” Geier, 161 P.3d at ___ circumstances that would lead an objective witness reasonably to believe that basis of the expert’s testimony, was testimonial because it was “made under litigation, let alone records produced ex did not testify. The defendant asserted that the DNA report, which formed the though the expert did not run the tests herself and the analyst who ran them defendant’s DNA and that extracted from one of the victims matched even expert could rely upon DNA test results to formulate her opinion that the had been invoked to admit testimonial One of the issues in Geier historical exception apart from that for dying declarations) ever, a capital murder case, was whether the State’s instructive.

. at 13 (citations and quotation omitted). As an historical matter, the exception in 1791 was a very

agents for later use in criminal prosecutions.

records exception did not encompass records prepared for use in thought it could be so used. Traditionally, the historical business nontestimonial per accused in a criminal case, nor any indication that the Framers Nor can it be that all statements that qualify as business records are statements against the

that the historical business records exception (or any other

See id. As the court in Thomas explained: when the Federal Constitution was drafted, not that which currently exists. 5053). The Crawford dicta related to the business record exception that existed 2006), petition for cert. filed, ___ U.S.L.W. ____ (U.S. June 28, 2007) (No. 07-

Geier, 161 P.3d at ___. result is the arrest and possible prosecution of the perpetrator.” Id.; see also

been testimonial because “[a] reasonable person reporting a domestic 2006). If this were so, the victim’s statements to the 911 operator would have used prosecutorially.” United States v. Ellis, 460 F.3d 920, 926 (7th Cir. testimonial in every case where a declarant reasonably expects that it might be p. 10 1007 (Mont. 2005). Following Davis, “it cannot be that a statement is formulation. Davis, 126 S. Ct. at 2273; see State v. Carter, 114 P.3d 1001, concerned, Crawford, 541 U.S. at 52 (quotation omitted), it did not endorse this the core class of statements with which the Confrontation Clause was the statement would be available for use at a later trial” as one formulation of circumstances which would lead an objective witness reasonably to believe that single analysis of Crawford p. 11 Ultimately, like the California Supreme Court, we too have not found any

makes testimonial “any statement that it might be reasonably anticipated will statement would be available for use at trial or whether it constitutes a Additionally, the court specifically rejected the bright line rule that factor, such as whether an objective witness would reasonably believe the We are especially unpersuaded by tests that rest, nearly exclusively, upon one

circumstances under which the statement was made.” Id. at ___. might be reasonably anticipated that a statement will be used at trial but the be the law. See id. “Davis confirms that the critical inquiry is not whether it

against the defendant. Id. at __. Id. at ___. Under these circumstances, the analyst did not “bear witness” technician’s laboratory notes and report, but by the testifying [expert] witness.” Further, the court interpreted Davis accusatory opinions “were reached and conveyed not through the nontestifying to exonerate as well as convict.” Id Geier. at __ (quotation omitted). Finally, the contemporaneous recordation of observable events” is the “crucial point.” laboratory protocols and the resulting raw data were “neutral, having the power the procedures she used was not “accusatory.” Id. at ___. Her report of job, not . . . to incriminate [the] defendant.” Id. Moreover, merely recounting standardized scientific protocol.” Id. at __. Further, she did so “as part of her The analyst who generated the report and notes did so “as part of a further indicated that the DNA test results were not testimonial. Id. at ___. whether it is testimonial. Id. at ___. These circumstances, the court ruled, circumstances under which the out-of-court statement was made to determine were not testimonial under these criteria. Id The court ruled that the DNA test results, upon which the expert relied, as requiring it to consider the

, 161 P.3d at ___.

California Supreme Court, whether “the statement represents the witness nor testifying. Id. at ___; see Ellis, 460 F.3d at 926-27. To the victim in Davis, when she made these observations, she was neither acting as a that analysis as she was actually performing those tasks.” Id. at ___. Like the DNA samples, her preparation of the samples for analysis, and the results of analyst who conducted the DNA test “recorded her observations regarding the

activity for possible use at a later trial. Id. at __. enforcement officer or agent; and (2) describe a past fact related to criminal ruled that to be testimonial, a statement must be: (1) made to a law testimonial.” Id. at __. Based upon its interpretation of Crawford and Davis, it the court was “more persuaded by those cases concluding such evidence is not Davis to the kind of scientific evidence at issue . . . to be entirely persuasive,” While it “found no single analysis of the applicability of Crawford and p. 12 12 calculus and the weight to be accorded them.” Stechly accusation. See exhaustive list of factors which may potentially enter into the ‘testimonial’ The second factor we believe is important is whether the statement is an statement testimonial, we believe it would be fruitless to attempt to provide an

supra § 6371.3, at 207. hearsay statement is an accusation is “historically correct.” Wright & Graham, the original Federal Confrontation Clause, arguably, focusing upon whether a Michels, 624 S.E.2d at 680. Moreover, given the use of the word “accusers” in to protect a criminal defendant from accusations of criminal wrongdoing.” 680. “Crawford emphasized that a principal aim of the Confrontation Clause is the statement was prepared in a manner resembling ex § 6371.2, at 42, § 6371.3, at 207 (Supp. 2007); see also Michels, 624 S.E.2d at We believe that two other factors are also important; the first is whether 30A C. Wright & K. Graham, Federal Practice and Procedure

“Like other courts which have considered the issue of what makes a essentially investigative and prosecutorial function.” Crawford, 541 U.S. at 53. “were not magistrates as we understand that office today, but had an Ct. App. 2006). The justices of the peace who conducted these examinations statements into evidence.” Bohsancurt v. Eisenberg, p. 12 129 P.3d 471, 477 (Ariz. questioning witnesses, ex However, we agree with the court in Geier parte, and then merely reading the witnesses’ referred to “the historical practice of justices of the peace or other court officials Michels v. Com., 624 S.E.2d 675, 680 (Va. Ct. App. 2006). In Crawford, this

___; see Davis, p. 12 126 S. Ct. at 2278. past events” or “the contemporaneous recordation of observable events.” Id. at statement is testimonial or not is whether it represents “the documentation of 161 P.3d at ___. We also agree that a crucial factor in determining whether a which an out-of-court statement is generated is the “critical inquiry.” Geier,

case may not carry much weight in another.” Id. “Each case must be resolved on its own merits, and a pertinent factor in one

(2006). “require an ad hoc, case-by-case approach”), cert. denied, p. 12 126 S. Ct. 2983 Davis) (determining whether statements made during 911 call are testimonial basis); cf. United States v. Brito, 427 F.3d 53, 61 (1st Cir. 2005) (decided before determining whether statement is testimonial must be made on a case-by-case 870 N.E.2d 333, 363 (Ill. 2007) (Crawford and Davis make clear that case approach. See Davis, 126 S. Ct. at 2277-78; see also People v. Stechly, J., dissenting), we believe that the Court’s decision in Davis requires a case-byclarity and predictability,” Roell v. Withrow, 538 U.S. 580, 596 (2003) (Thomas, business record. While bright line tests may be easy to administer and “bring[ ] tests at issue here were never p. 13 testimony. Unlike most of the cases involving laboratory reports, the blood

not testimonial. 4. Blood Test Results not violate the defendant’s Confrontation Clause rights because the tests were test results, absent the testimony of the analyst who conducted the test, did We conclude that, in this case, permitting Dr. Wagner to give his opinion of the the raw data from which he derived this result were admitted into evidence. statements that the Court “defined as unquestionably testimonial.” Forte testimony regarding the “final report[ed] result,” which he prepared. None of evidence of the defendant’s blood alcohol content came from Dr. Wagner’s The blood sample collection form is, thus, unlike the categories of

that it is not testimonial within the meaning of Crawford and Davis. Confrontation Clause targeted.” Crawford, 541 U.S at 51. We hold, therefore, S.E.2d at 143. It “bears little resemblance to the civil-law abuses the

3. Blood Sample Collection Form

omitted); see Coombs, 149 N.H. at 323. upon the record of . . . her own action.” Geier, 161 P.3d at ___ (quotation memory information related to [its] specific contents and would rely instead sample collection form, she likely “would be unable to recall from actual State v. Coombs, 149 N.H. 319, 323 (2003). Although she signed the blood “would merely have authenticated the document.” Geier blood and about the draw itself (e.g., 161 P.3d at ___; see (quotation omitted). If the technician had been called to testify at trial, she wrongdoing. It merely gave information about the technician who withdrew the not a “weaker substitute for live testimony at trial.” Davis The blood sample collection form did not accuse the defendant of any, 126 S. Ct. 2277 Moreover, the technician’s statements on the blood sample collection form were pertinent administrative rules. See N.H. Admin. Rules, Saf-C 6402.02. on the form was not requested by law enforcement, but was required by shortly after she drew the defendant’s blood. Further, the information supplied The technician filled out the blood sample collection form at the same time or contemporaneous recordation of observable events. Geier, 161 P.3d at ___. of the defendant’s past conduct. Rather, it constituted the technician’s 265:90, IV; N.H. Admin. Rules, Saf-C 6402.02. Nor did the form describe any

the blood sample collection form first. legal conclusion, which we review de novo. Ayer, 154 N.H. at 508. We address testimonial. Whether a statement is testimonial under Crawford and Davis is a form and blood tests upon which Dr. Wagner based his testimony were We now turn to the issue at hand: whether the blood sample collection are not testimonial hearsay under Crawford p. 14 collection form and the blood tests upon which Dr. Wagner based his testimony Accordingly, for all of the above reasons, we hold that the blood sample Although in Ayer

form and Dr. Wagner’s testimony, absent the testimony of the technician who

at 511. Second, the defendant makes no argument under Roberts Confrontation Clause.. See Ayer, 154 N.H. limitations upon hearsay evidence, is not subject to the Confrontation Clause”). admission of the form and Dr. Wagner’s testimony did not violate the Federal statement that separates it from other hearsay that, while subject to traditional which Dr. Wagner based his testimony are not testimonial, we hold that Having ruled that the blood sample collection form and blood tests upon with respect to testimonial statements, “[i]t is the testimonial character of the Bockting, 127 S. Ct. 1173, 1183 (2007); see Davis, 126 S. Ct. at 2273 (noting, Clause applies only 5. Conclusion to out-of-court statements that are testimonial. Whorton v. United States Supreme Court has clarified that the Federal Confrontation do not do so in this case for two reasons. First, since we decided Ayer, the which we apply Roberts to out-of-court statements that are not testimonial, we

we conclude that the blood tests were not testimonial. levels of review and chain of custody matters.” Id. Given these circumstances, Laboratory’s test procedures and protocols, quality control measures, specific that of Dr. Wagner as it “would concern her general knowledge of the State Coombs nontestifying analyst’s report, but by Dr. Wagner, the testifying witness. See, 149 N.H. at 323. Her testimony would have been nearly identical to performance of [the] specific test [of the defendant’s blood] months later.” analyst appeared at the hearing, she “would almost certainly not remember her have led either to incriminatory or exculpatory results. Geier Wagner testified that he personally prepared this analysis. Further, had the The results generated from the blood test were neutral, as the tests could second decimal place. See N.H. Admin. Rules, Saf-C 6402.11, 6402.12. Dr. determined by averaging the value of two replicate tests and rounding to the Under New Hampshire regulations, the reported value of the blood sample is certifying scientist is effective substitute for right to confront actual analyst). test results, even though he did not conduct blood tests; cross-examination of Confrontation Clause not violated when certifying scientist testifies to blood id. at ___; cf. Coombs, 149 N.H. 319 (decided before Crawford and Davis) (State

accusatory, this result was reached and conveyed not through the Moreover, to the extent that the actual reported test result is deemed to be

p. 15 Dispensing with confrontation because testimony is

. . . .

testing in the crucible of cross-examination. . . .

reliability be assessed in a particular manner: by

It commands, not that evidence be reliable, but that

is a procedural rather than a substantive guarantee.

ultimate goal is to ensure reliability of evidence, but it

right of confrontation. To be sure, the Clause’s

reliable by a judge is fundamentally at odds with the

“reliability.” . . . Admitting statements deemed

evidence, much less to amorphous notions of

Amendment’s protection to the vagaries of the rules of

not think the Framers meant to leave the Sixth

In Crawford 15

Crawford v. Washington practice and state statutory provisions. However, because I believe that Court cases concerning the Confrontation Clause, the realities of criminal trial best efforts a court has made to harmonize recent United States Supreme DUGGAN, J., dissenting. The majority’s thoughtful opinion is one of the

Where testimonial statements are involved, we do

The United States Supreme Court’s decision in Crawford

the foundation upon which Confrontation Clause analyses rest, explaining:

, the United States Supreme Court eliminated reliability as Affirmed

154 N.H. at 505. “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66; Ayer, reliability’” if it fell “within a firmly rooted hearsay exception,” or possessed Under Roberts, evidence was considered to have “adequate ‘indicia of (1980), making a basic foundational inquiry into the reliability of the evidence. Crawford, we applied the standard announced in Ohio v. Roberts, 448 U.S. 56 cert. filed, ___U.S.L.W. ___ (U.S. Apr. 26, 2007) (No. 06-11028). Before must be analyzed. See BRODERICK, C.J., joined, dissented. State v. Ayer, 154 N.H. 500, 504-05 (2006), petition for major change in how alleged violations of the Federal Confrontation Clause GALWAY and HICKS, JJ., concurred; DUGGAN, J., with whom effectuated a

respectfully dissent.

Federal Confrontation Clause. drew the defendant’s blood or the analyst who tested it, did not violate the business records exception from 1791 through modern times. See p. 16 Indeed, at least two courts have exhaustively traced the history of the

prosecutorial purposes. purposes. Here, by contrast, the records at issue were prepared solely for “testimonial” because they are prepared for business – not prosecutorial –

be rejected as inconsistent with Crawford 1060. For example, the Thomas Court concluded: apply the business records exception in the Confrontation Clause context must nontestimonial business records. Thomas, 914 A.2d at 14; Miller, 144 P.3d at I agree with the majority’s well-reasoned discussion of why efforts to Framers would not have considered reports like those at issue here to be business records exception, both courts persuasively concluded that the nontestimonial business records. Business records are not considered (Or. Ct. App. 2006). Based upon their thorough reviews of the history of the 1052, 1058-60 (Or. Ct. App.), adhered to on reconsideration, 149 P.3d 1251 Crawford U.S.L.W. ___ (U.S. June 28, 2007) (No. 07-5053); State v. Miller conspiracy.” Crawford, 144 P.3d United States collection form and blood test result are “testimonial” within the meaning of testimonial – for example, business records or statements in furtherance of a, 914 A.2d 1, 13-14 (D.C. 2006), petition for cert. filed, ___

that reports like the ones at issue in this case ought to be deemed approach taken in Crawford, it does not necessarily follow from this dictum

hearsay exceptions covered statements that by their nature were not The principal question presented by this case is whether a blood that at the time the Framers drafted the Federal Constitution, “[m]ost of the records exception seize upon dicta from Crawford, in which the Court noted

and discusses how other courts have dealt with this question. Federal Supreme Court jurisprudence, including Crawford, Davis and Roberts,

. In answering this question, the majority carefully summarizes

denied, 126 S. Ct. 2983 (2006). uncertainty.” United States v. Brito, 427 F.3d 53, 55 (1st Cir. 2005), cert. constitute] testimonial hearsay, and so its ruling produced a miasma of Confrontation Clause – but the Court left open the parameters of [what would (2006). “This ruling effected a sea change in the jurisprudence of the Crawford, 541 U.S. at 59; Davis v. Washington, 126 S. Ct. 2266, 2275 n.4 prior opportunity to cross-examine the declarant.” Ayer, 154 N.H. at 505; from trial [unless] . . . the declarant is unavailable and the defendant has had a Clause bars the admission of “testimonial statements of a declarant absent Crawford, 541 U.S. at 61-62. Thus, the Court held that the Confrontation

what the Sixth Amendment prescribes. because a defendant is obviously guilty. This is not p. 17 Crawford

exception might be justifiable in other circumstances.

some broad, modern hearsay exception, even if that

not evaporate when testimony happens to fall within

Framers were keenly familiar. This consideration does

Thomas

time and again throughout a history with which the

the party responsible for making the record.”). potential for prosecutorial abuse – a fact borne out

alone records produced ex

prepared with an eye toward litigation when offered by of testimony with an eye toward trial presents unique

encompass records prepared for use in litigation, let

810 (Fla. 2006). State, 929 So. 2d 4, 7 (Fla. Dist. Ct. App. 2005), review granted, 924 So. 2d the document non-testimonial.” Thomas, 914 A.2d at 14; see also Johnson v. jurisdiction’s business records exception to the hearsay rule does not render prosecution, the fact that the document might happen to fall within the the business records exception to any document admit testimonial government to use . . . as a substitute for live testimony in a criminal [i]nvolvement of government officers in the production of Columbia reasoned, “where a document is created primarily for the

, 541 U.S. at 56-57 n.7. Thus, as the Court of Appeals for the District

I find the historical approach and conclusions reached in Thomas

historical business records exception did not

accepted “litigation records” doctrine that would “deny that for dying declarations) ever had been “invoked to

in anticipation of trial and at the request of police officials. The Miller to be persuasive, especially because the reports at issue were prepared

, 914 A.2d at 13. 1354 (emphasis in original). Traditionally, the

521 F.2d 957, 966 (1975) (discussing the generally exception (or any other historical exception apart from United States v. Smith, 172 U.S. App. D.C. 297, 306, for later use in criminal prosecutions. See, e.g.,

a very narrow one. See

thought it could be so used. 541 U.S. at 56, 124 S.Ct. criminal case,” nor any indication that the Framers

no evidence that the historical business records 19 (1974 ed.). In p. 17 Crawford, the Supreme Court found Wigmore, Evidence in Trials at Common Law, §§ 1518-

As an historical matter, the exception in 1791 was p. 18 Three examples are illustrative. First, under the test, it appears that in a first

In terms of applying the three-prong test, there are some open questions.

of evidence,” Crawford Although the Confrontation Clause’s “ultimate goal is to ensure reliability

particular manner: by testing in the crucible of cross-examination”). “commands, not that evidence be reliable, but that reliability be assessed in a confrontation applies. See Crawford, 541 U.S. at 61 (the Confrontation Clause make preliminary reliability assessments to determine whether the right of forbids us from adopting it. Crawford simply does not seem to allow us to test to be balanced, I think Crawford severely constrains our analysis and the Confrontation Clause are satisfied. Accordingly, while I find the majority’s concerning a particular statement may be of little value, the requirements of 61. Thus, nothing in Crawford suggests that because cross-examination fundamentally at odds with the right of confrontation.” Crawford, 541 U.S. at deemed inherently more reliable than a recitation of past events. See prongs of the test focus upon the content of the statements at issue, i.e. notions of ‘reliability.’ . . . Admitting statements deemed reliable by a judge is hearsay exception (a present sense impression), is that such a statement is in context to determine whether it is testimonial. However, the first and last protection to the vagaries of the rules of evidence, much less to amorphous one reason that the contemporaneous recordation of observable events is a admirably leaves some room for a trial court to evaluate each piece of evidence involved, . . . the Framers [did not intend] to leave the Sixth Amendment’s thus concluding that cross-examination would be of little value. For example, As a theoretical matter, the test set forth in the majority’s opinion makes clear that “[w]here testimonial statements are constitute a means of making an initial or threshold reliability assessment and Further, reduced to their essence, the three prongs of the test appear to can only be made during live testimony. requires the assessment of demeanor and other credibility determinations that claim that another has perpetrated some act. Evaluating accusations often accusations are not inherently reliable because they amount to one person’s v. Snow, 139 N.H. 735, 738 (1995); N.H. R. Ev. 803 Reporter’s Notes. Likewise,

statements were made. Crawford, 541 U.S. at 51-52. upon the content of the statements, but upon the process through which the Crawford ’s core class of testimonial statements, on the other hand, focuses not time frame they describe and whether they are accusatory in nature.

indicate that a statement is testimonial. examination; and (3) is an accusation. Affirmative answers to these questions observable events); (2) was prepared in a manner resembling ex parte documents past events (as opposed to being a contemporaneous recordation of applies a three-part test that focuses upon whether the statement at issue: (1) After summarizing the legal landscape, the majority announces and p. 19 Id

a later trial.

believe that the statement would be available for use at which would lead an objective witness reasonably to statements that were made under circumstances

depositions, prior testimony, or confessions;

in formalized testimonial materials, such as affidavits,

prosecutorially; extrajudicial statements . . . contained

that declarants would reasonably expect to be used

three “core” criteria articulated in Crawford If we apply these principles to the blood test result, it satisfies two of the

unable to cross-examine, or similar pretrial statements 19

N.H. 319, 322 (2003) (“A laboratory test used to prove an essential element of a an ex parte affidavit about which Dr. Wagner testified. State v. Coombs, 149

criminal prosecution.” Ayer, 154 N.H. at 507 (quotation omitted). interrogation is to establish or prove past events potentially relevant to later response to police interrogation, when “the primary purpose of the in Davis, the Court held that statements are also testimonial when made in . at 51-52 (quotations and citations omitted). We must also be mindful that, examinations, prior testimony that the defendant was

ex

Thus, like the Missouri and Minnesota Supreme Courts, see

– that is, material such as affidavits, custodial parte in-court testimony or its functional equivalent

Crawford: “formulations of [a] core class of testimonial statements” announced in ‘testimonial,’” Crawford, 541 U.S. at 68, requires us to adhere to the three “leave for another day any effort to spell out a comprehensive definition of 310 (Minn. 2006), I believe that the United States Supreme Court’s decision to March, 216 S.W.3d 663, 666 (Mo. 2007); State v. Caulfield, 722 N.W.2d 304,

physical state or cause of death from a given day in the past. just as easily argue that the pathologist is actually recording the subject’s is presently seeing as the test’s result for a given subject; however, one could report, one could argue that the pathologist is simply recording what he or she the door for some interesting debate. For instance, with respect to an autopsy call at issue in Davis. Finally, emphasizing temporal concerns also leaves open odd results because many calls to the police are accusatory, including the 911 case. Second, asking whether a statement is an accusation may produce some State to use the affidavits of its agents to prove a DNA match in a death penalty majority’s. I simply do not agree that the Confrontation Clause allows the (Cal. 2007), which announced a reformulation of Crawford similar to the testify. Indeed that appears to be the result in People v. Geier, 161 P.3d 104 established through the affidavit of, for example, a DNA analyst who does not degree or capital murder trial, identification or cause of death may be report. In any event, Crawford

p. 20 testimony merely because it is offered in the form of a

little sense to say that the same statement cannot be

Note, Testimonial or Nontestimonial? The Admissibility of Forensic Evidence

report would qualify as testimony. Therefore, it makes

meeting.

findings in court, then the spoken contents of the

criterion most lab reports would have no trouble

have reached the same conclusion. See A significant, and growing, number of courts from around the country Were the preparer of a lab report to state his or her

purpose of establishing or proving some fact,” a

United States v. Rahamin, 168 Fed. Appx. 512, 520 (3d Cir. 2006) (recognizing substance as marijuana was testimonial), cert. denied, 127 S. Ct. 1150 (2007); 719 N.W.2d 374, 377 (N.D. 2006) (assuming report from crime lab identifying result identifying substance as cocaine was testimonial); State v. Campbell fact relevant to the case as the speaker perceives it., Caulfield, 722 N.W.2d at 310 (deciding under Crawford that laboratory test Crawford that laboratory test identifying substance as cocaine was testimonial); solemn declaration or affirmation made for the methamphetamine was testimonial); Thomas, 914 A.2d at 12 (deciding under that laboratory test result concluding urine and pipe residue contained cocaine was testimonial); Miller, 144 P.3d at 1060 (deciding under Crawford 667 (deciding under Crawford that laboratory report identifying substance as (Or. 2007) (deciding issue under Oregon Constitution); March, 216 S.W.3d at

50. conclusion that the blood test result was “testimonial.” Crawford imagined . . . , they are nonetheless statements of a, 541 U.S. at at which the Confrontation Clause was directed,” Crawford compels a use of ex parte its format; instead, it merely defined testimony as “[a] affidavits to secure criminal convictions was “the principal evil prosecution to secure a conviction at a subsequent trial for DWI. Thus, since reasonably have believed that the results she reported would be used by the the analyst performed the test at the request of the police, and she should after Crawford v. Washington, 94 Ky. L.J. 187, 203 (2005). Equally important,

While lab reports are not testimony as it is generally

that whether a statement is testimonial depends upon

alcohol content. equivalent of testimony for purposes of establishing the defendant’s blood characteristics of an ex parte affidavit.”). In that capacity, it functioned as the an element of the crime charged is ‘testimonial’ because it bears all the 666 (“A laboratory report . . . that was prepared solely for prosecution to prove criminal offense constitutes . . . an ex parte affidavit.”); March, p. 21 216 S.W.3d at 21

anticipated DWI prosecution”). primary purpose of the certificate “was surely to preserve evidence for a future The same is true of the blood collection form. In State v. Renshaw 38 (N.J. Super. Ct. App. Div. 2007) (reaffirming Renshaw and holding that the other than testimonial.” Id. at 1087; see also State v. Kent, 918 A.2d 626, 637purposes of Crawford of trial, and indeed only for purposes of trial, [and could be considered] nothing that there is no principled way to distinguish among these tests or reports for 1084. The court concluded that the collection form was “prepared for purposes support their reasoning. By so doing, these courts have correctly recognized officer, along with a blood collection form akin to the one at issue here. Id. at by the officer. Id The courts in many of these cases cited each other as persuasive authority to. The employee then gave two vials of extracted blood to the blood alcohol analysis – for example, DNA testing, autopsies and breath tests. suspected drunk driver. Id. at 1083. The employee did so, using a kit provided Some of the foregoing cases involved reports based upon tests other than hospital employee was asked by a police officer to draw a blood sample from a Jersey statute, was testimonial under Crawford. There, as here, a private hospital nurse’s blood sample certification, completed pursuant to a New A.2d 1081, 1087 (N.J. Super. Ct. App. Div. 2007), the court determined that a

who actually performed the test), cert. granted, 923 A.2d 231 (N.J. 2007). element of the crime and offered in lieu of producing the qualified individual ordinary course of government business, but was prepared in order to prove an statement because the report was not a record prepared or maintained in the blood contained a blood-alcohol level of .33 percent was a testimonial under Crawford that laboratory certificate indicating sample of defendant’s Berezansky, 899 A.2d 306, 312 (N.J. Super. Ct. App. Div. 2006) (deciding and inadmissible), appeal denied, 720 N.W.2d 742 (Mich. 2006); State v. intimating that substance on defendant’s shorts was semen was testimonial App. 2005) (deciding under Crawford that information from lab report Confrontation Clause); People v. Lonsby, 707 N.W.2d 610, 620- p. 21 21 (Mich. Ct. (deciding under Crawford that admission of blood test results violated (Ohio 2006); People v. Rogers, 780 N.Y.S.2d 393, 396-97 (App. Div. 2004) that DNA analyst’s report was testimonial), appeal allowed, 846 N.E.2d 533 Crager, 844 N.E.2d 390, 396 (Ohio Ct. App. 2005) (deciding under Crawford identifying substances as cocaine and marijuana was testimonial); State v. Johnson, 929 So. 2d at 8 (deciding under Crawford that laboratory report affidavit were testimonial), review granted, 928 So. 2d 336 (Fla. 2006); Dist. Ct. App. 2005) (deciding under Crawford that portions of breath test cert. denied, 547 U.S. 1071 (2006); Belvin v. State, 922 So. 2d 1046, 1054 (Fla. that nurse’s affidavit describing procedure used to draw blood was testimonial), Vegas v. Walsh, 124 P.3d 203, 207-08 (Nev. 2005) (deciding under Crawford was offered to prove the weight and substance of ecstasy pills); City of Las that a DEA laboratory report appeared to be a testimonial statement since it clarifies Crawford p. 22 2 2 witnesses. However, until the United States Supreme Court modifies or consequence for the prosecution of certain offenses in this state and for expert Finally, I recognize that if my view were adopted, it would be of no slight

BRODERICK, C.J., joins in the dissent.

testimony at trial under certain circumstances. whether we may, in the exercise of our supervisory power, require live Constitution. State constitutional issues remain open as do issues involving Before concluding, I note that this case is decided under the Federal would reverse the defendant’s conviction and remand for further proceedings. apply its reasoning to the hearsay statements currently before us. Thus, I opinions are cited above, believe we are compelled to follow Crawford and to

, or charts a different course, I, like the courts whose

within the meaning of Crawford Thus, like the blood test result, the blood collection form was testimonial

the police, and its sole intended use was to secure a conviction at trial. Moreover, the blood collection form at issue here was prepared at the request of offered to prove or establish the procedures followed during blood collection.