2011-565, State of New Hampshire v. Anthony Dilboy

Michael A. Delaney

No. 2011-565 Strafford

the United States Supreme Court vacating the judgment in State v. Dilboy Dilboy I DALIANIS, C.J. This case is before us pursuant to an order entered by

, assistant appellate defender, of Concord, on the

defendant, Anthony Dilboy, on two counts of manslaughter, see RSA 630:2 remains unchanged. In Dilboy I, we affirmed the conviction of the Confrontation Clause issue. As to the other five issues, our prior decision in 131 S. Ct. 3089 (2011). On remand, we reconsider only our holding on the Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Dilboy v. New Hampshire, reporter@courts.state.nh.us N.H. 135 (2010) (Dilboy I), and remanding for further consideration in light of

brief and orally, for the defendant. ___________________________ Stephanie Hausman THE SUPREME COURT OF NEW HAMPSHIRE

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

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

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

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 Motion in

The State objected to the defendant’s motion and also filed “State’s

to specify exactly what it is he’s talking about.” The trial court asked the

inadmissible under the Confrontation Clause. argued that such documents are testimonial and, without live testimony, rather an interpretation of other, or further, test results.” The defendant

different angles . . . and . . . it would be very helpful . . . to ask defense counsel counsel has filed many motions that . . . address the same subject from analyst’s record of [requesting] the tests.” The State also asserted that “defense

Prior to trial, the defendant filed several motions in utilized and the state will seek to introduce not the ‘reported value’ . . . but laboratory), a division of the New Hampshire Department of Safety. 2

blood samples were collected from the defendant[,] . . . the raw data and the

regarding the blood test results in this case. . . . [I]t appears ‘raw data’ will be Court (Fauver is unclear what documentary evidence the state may seek to introduce tested at the State Police Forensics Toxicology Laboratory (State forensic he explained his objection to the introduction of “blood test results,” stating: “It

and would be relying upon blood collection forms “that show when and how the State’s Motion. The State explained that Wagner would give an opinion at trial trial court heard arguments from the parties on the defendant’s MIL and the

, J.) held a hearing on December 13, 2007. At the hearing, the assistant laboratory director of the State forensic laboratory. The Superior and one urine sample were taken from the defendant. The six samples were

moving to admit evidence relied upon by its expert, Michael Wagner, Ph.D., the of safety to the Dover Police, and blood test results. In the body of the motion, Wentworth-Douglass Hospital. At the hospital, four additional blood samples paramedics took a blood sample from the defendant and transported him to Limine Re: Evidence Relied Upon by Experts” (State’s Motion), State may see [sic testing of the defendant’s six samples. The defendant “anticipated that the

record. Additional facts can be found in our opinion in Dilboy I

transmittal slips, the reports of the lab examinations sent from the department sedan, killing both the driver and the passenger. After the collision,] to elicit testimony regarding,” among other documents, the

prevent the State from presenting certain evidence related to the forensic motion, entitled “Defendant’s p. 2 Motion in Limine” (MIL), the defendant sought to The following facts, relevant to the issue before us, are supported by the limine. In one

light at a high rate of speed and collided with the passenger-side of a Volvo 160 N.H. at 140-42. On March 7, 2006, the defendant drove through a red

affirm. our decision in light of Bullcoming and thoroughly reviewing the record, we homicide, see RSA 630:3 (2007). Dilboy I, 160 N.H. at 139. After reconsidering (Supp. 2005) (amended 2006), and two alternative counts of negligent testify about specific symptoms other witnesses had attributed to the p. 3 any effects the defendant may have actually experienced. He did, however,

influence of controlled drugs at the time of the collision; nor did he opine as to

did not offer an opinion about whether the defendant was, in fact, under the possible effects from the use of, or withdrawal from, various drugs.” Wagner The bulk of Wagner’s testimony focused upon “the uses, dosages, and

what was contained within the file. admitted into evidence and neither counsel nor the trial court inquired as to file” with him and reviewed it during his testimony. However, the file was not about his job duties, At trial, the State presented the expert testimony of Wagner. He testified

Wagner replied, “Yes.” While testifying, he stated that he had his “original data

opinions with respect to interpreting the findings of [the] lab on those samples,”

“consistent with [the court’s] analysis.”

we . . . found in [a] particular sample.” When asked if he had “also stated some also explained that “[the laboratory] render[s] a report that demonstrates what Clause. The parties’ motions were granted in part and denied in part defendant]” and that the “laboratory issued results from that analysis.” He specifically address whether Wagner’s testimony violated the Confrontation not] make a determination at [the] time [it issued the order].” The court did not 3

toxicology tests on “specimens that purported to have come from [the

not submit these forms for the court’s review and therefore the court [could (2009), those portions are no longer good law. analysis in O’Maley are inconsistent with Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 , 160 N.H. at 151-52, to the extent that portions of the 1 For the reasons articulated in Dilboy I

the tests on the defendant’s samples, Wagner testified that he reviewed the analysis of [a] sample.” Although it is unclear from the record who performed with respect to the laboratory reports until trial because “[t]he defendant did paperwork[,] . . . [the] comments[,] . . . [and] any issue that’s involved in the the interpretation of the results is testimonial.” The trial court deferred ruling The trial court elaborated that “the blood test results are non-testimonial but

assistant laboratory director, his role is to “review the data[,] . . . the laboratory tests on some of the defendant’s samples. He explained that, as blood sample collection forms, and the blood test results are non-testimonial.” laboratory procedures, and the outcomes of the

of the documents little bit for the State.” The defendant, without elaborating, maintained that all The trial court inquired further, explaining that “we’re trying to nail it down a

After the hearing, the trial court ruled “that the transmittal slips, the

Wagner’s testimony would violate his right to confrontation. 156 N.H. 125 (2007).1 The defendant did not, however, specifically argue that

described in his MIL are testimonial under State v. O’Maley,

ability to cross-examine any evidence that is going to be presented to this jury.” defendant to articulate his position, and the defendant responded, “I want the p. 4 (Fauver

conviction, arguing six separate errors, including that the Superior Court two alternative counts of negligent homicide. The defendant appealed his The jury found the defendant guilty of two counts of manslaughter and

Clause. We assumed that the “test results” about which Wagner testified were

“witnesses against” an accused are “those who bear testimony.” Crawford v. confronted with the witnesses against him.” U.S. CONST. amend. VI. The On appeal in Dilboy I that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

The relevant issue before us in Dilboy I witness, id

issue.” Id Wagner’s testimony at trial about the test results violated the Confrontation laboratory report letters conveying the test results to the police were not. that the blood test results were non-testimonial, and, accordingly, that Wagner’s testimony, the transmittal slips were admitted into evidence, but the certiorari, vacated our decision in Dilboy I the transmittal slips. Rather, he contended that the trial court erred in ruling amount of Benzoylecgonine, a metabolite of cocaine. At some point after, the defendant did not challenge the admission of

Amendment to the United States Constitution. The Sixth Amendment provides Bockting, 549 U.S. 406, 420 (2007). the Confrontation Clause has no application. See id. at 68; see also Whorton v.

. at 53-54. When the evidence at issue is non-testimonial, however,

defendant has had a prior opportunity to cross-examine the unavailable witness either appears at trial, id the “surrogate” testimony of a different scientist.. at 60 n.9, or is unavailable for trial and the

. at 68. A witness’s testimonial statements are admissible only if the

the Confrontation Clause apply, therefore, whenever “testimonial evidence is at Washington, 541 U.S. 36, 51 (2004) (quotations omitted). The protections of

States Supreme Court on the Confrontation Clause issue. The Court granted found trace amounts of Clonazepam and cocaine, as well as a quantifiable

certain evidence at trial violated the Confrontation Clause of the Sixth

the report of a forensic scientist absent from trial was not admissible through upon Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), in holding that consideration in light of Bullcoming. In Bullcoming, the Supreme Court relied

The defendant then filed a petition for a writ of certiorari with the United in the defendant’s blood, stating, for example, that in one blood sample, “we” analyst from his laboratory, he did testify that certain substances were present the Federal Confrontation Clause. Finding no error, we affirmed. statements of other analysts and at no point identified by name any other, J.) erred in admitting evidence of laboratory test results in violation of

defendant’s samples. While he did not expressly repeat any out-of-court defendant. He also testified about the tests “purported[ly]” run on the p. 5 Crawford

for use at a later trial. reasonably to believe that the statement would be available

circumstances which would lead an objective witness

p. 5 Crawford given some indication of what qualifies as a “testimonial statement.” In comprehensive definition of the phrase “testimonial statements,” the Court has confessions; [and] statements that were made under materials, such as affidavits, depositions, prior testimony, or extrajudicial statements contained in formalized testimonial

Although the United States Supreme Court has not yet set forth a and thus fell within the “core class of testimonial statements [described in would reasonably expect to be used prosecutorially;

court testimony, doing precisely what a witness does on direct examination” testimonial.” reporting the results of forensic testing were “functionally identical to live, in- must address the trial court’s ruling that “the blood test results are non- examine, or similar pretrial statements that declarants Diaz, 129 S. Ct. at 2531-32, the Court explained that sworn documents

, 541 U.S. at 51-52 (quotations and ellipsis omitted). In Melendez-

witness were admitted at trial. See

testimony about the blood test results violated the Confrontation Clause, we prior testimony that the defendant was unable to crossthat is, material such as affidavits, custodial examinations, ex parte in-court testimony or its functional equivalent —

, the Court listed examples of “testimonial” statements:

been violated is whether any “testimonial statements” of a non-testifying The threshold issue in deciding whether the Confrontation Clause has

because it communicated the testimonial statements of declarants who [sic Wagner’s testimony “about the test results violated [his] right to confrontation such an assumption. Accordingly, before we determine whether Wagner’s testimony at trial, in light of Bullcoming, we believe we can no longer make statements of non-testifying witnesses were conveyed through Wagner’s regarding his opinions. Dilboy I Although in Dilboy I we assumed, without deciding, that the testimonial of” those results, and the defendant had the opportunity to cross-examine him State v. Silva, 158 N.H. 96, 102 (2008).

distinguishable and, therefore, is not controlling. State did not call as witnesses at trial.” The State responds that Bullcoming is

testimony violated his right to confrontation. The defendant asserts that that “the facts and holding of Bullcoming compel a finding that” Wagner’s

Confrontation Clause because he “generated opinions based upon his review testimonial, but nonetheless held that his testimony did not violate the whether his testimony was based upon his own understanding of the tests, or

p. 6 whether a statement is testimonial de original data file with him, we do not know what the file contained, and that the test results are non-testimonial. Moreover, although we review testimony at trial. For example, although we know that Wagner had his constitutes blood test results or make specific findings underlying its ruling The lack of a sufficient record similarly precludes our review of Wagner’s

interchangeably. The trial court did not, however, elaborate on what

Sotomayor’s concurrence in Bullcoming

that those findings were supported by sufficient evidence. Burke

raw data,” “blood and urine test forms,” and “blood test results” – sometimes involved in almost every step of the testing process, and drafted the report). violation where the testifying witness was the supervisor of the lab, was closely support its [ruling].” Burke v. Pierro to find no Confrontation Clause S11G1881, 2012 WL 1571549, at *2 (Ga. May 7, 2012) (relying upon Justice specific findings, a court is presumed to have made all findings necessary to testimony of an expert witness.”); Disharoon v. State the “test results” were never submitted into the record. “In the absence of, Nos. S11G1880, could introduce . . . raw data generated by a machine in conjunction with the at 2722 (Sotomayor, J., concurring) (“[W]e do not decide whether . . . a State 510; see State v. Michelson, 160 N.H. 270, 275 (2010); Bullcoming, 131 S. Ct.

assume the trial court made all findings necessary to support its ruling, and without any specific findings explaining what the “test results” are, we must results are non-testimonial.” In its order, the trial court referred to “blood test Crim. App. June 7, 2011). Thus here, without the “test results” to review, and As explained above, the trial court ruled prior to trial that the “blood test v. Samuel, No. M2009–01192–CCA–R3–CD, 2011 WL 2306034, at *7 (Tenn.

Melendez-Diaz parties apparently did not revisit the issue at trial. In this case, unlike in statements to review because the documents, or other evidence, that constitute reports because they were not submitted at the pre-trial hearing, and the novo, in this case we have no specific

Confrontation Clause under both Melendez-Diaz been admitted against the defendant at trial in this case, it would violate the Undoubtedly, if a forensic report created by a non-testifying analyst had

testimonial.” Id evidentiary purpose, . . . made in aid of a police investigation, ranks as in was Wagner’s testimony about the “blood test results.” statement. The Court explained that “[a] document created solely for an

and Bullcoming, the only evidence of forensic testing that came

such reports were admitted. In fact, the trial court never even ruled on the

. at 2717 (quotation omitted).

that an unsworn, but signed and certified, forensic report was a testimonial Crawford].” Most recently, in Bullcoming, 131 S. Ct. at 2717, the Court held p. 7 Clause under Bullcoming printouts, his statements may not have been a violation of the Confrontation

Dilboy I

upon his own review of raw data, such as graphic or numerical computer

upon them because the defendant did not address the issue in his brief in

If Wagner’s statements at trial about the “results” of the tests were based

defendant[,] . . . the raw data and the analyst’s record of [requesting] the tests.” (2) assume, as we did in Dilboy I decline to address the defendant’s Confrontation Clause arguments based Finally, although the transmittal slips were admitted into evidence, we

“that show when and how the blood samples were collected from the interpretation of the raw data or merely repeating the statements of others, or

issues, we must affirm.

theory of relief. See “independent,” consistent with the concurrence in Bullcoming Ultimately, there is no factual record that supports the defendant’s . Indeed, the defendant did not even brief the issue after the Supreme

hearing, Wagner’s testimony was an opinion based upon blood collection forms testimony was based upon and whether he was testifying based upon his own Confrontation Clause violation. See upon his review of the raw data. Indeed, as the State explained at the pretrial non-testifying witness, rather than his own opinions or conclusions based was the defendant’s burden to provide us with a record sufficient to decide his speculation, especially on an issue of first impression. Accordingly, because it circumstances, we see no way to resolve the issue based upon such

sufficiently close to justify his testimony, or whether his opinion was statements of others and then speculate as to whether his involvement was

would require us to either (1) speculate about what documents Wagner’s analyst’s statement of the “results,” his testimony at trial might have been a whether Wagner’s testimony conveyed the testimonial statements of others would violate the Confrontation Clause only if he recited the statements of a raised on appeal, State v. Parra, 135 N.H. 306, 309 (1992). To now address R. Ev. 103, and to provide this court with a record sufficient to decide the issue defendant’s obligation to state “explicitly the specific ground of objection,” N.H.

testimonial”). document,” contained “more than adequate [formalities] to qualify [it] as report, which contained test results and was “‘formalized’ in a signed

concurring). However, if at trial Wagner was merely repeating a non-testifying any statements made by such analysts. The admission of Wagner’s statements. See Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J., testing [the defendant’s] samples,” he does not actually identify any analysts or “conveyed statements from others involved in collecting, transmitting, and

others. And, although the defendant now argues that Wagner’s testimony whether he was reading or otherwise conveying the testimonial statements of p. 8 8

Accordingly, he waived this issue. See

HICKS, CONBOY and LYNN, JJ., concurred.

(2011). We, therefore, affirm.

supplemental brief filed in response to an order issued by this court. Court vacated Dilboy I, but rather raises the issue for the first time in a