United States v. Blazier , 2010 CAAF LEXIS 1053 ( 2010 )

UNITED STATES, Appellee
v.
Joshua C. BLAZIER, Senior Airman
U.S. Air Force, Appellant
No. 09-0441
Crim. App. No. 36988
United States Court of Appeals for the Armed Forces
Argued September 27, 2010
Decided December 1, 2010
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER, ERDMANN, AND STUCKY, JJ., joined.
Counsel
For Appellant: Major Marla J. Gillman (argued); Colonel
James B. Roan and Major Shannon A. Bennett (on brief);
Colonel Eric Eklund, Lieutenant Colonel Maria A. Fried, and
Major Lance J. Wood.
For Appellee: Gerald R. Bruce, Esq. (argued); Colonel
Douglas P. Cordova and Lieutenant Colonel Jeremy S. Weber
(on brief); Colonel Don M. Christensen and Captain Coretta
E. Gray.
Amicus Curiae for Appellant: Lieutenant Colonel Jonathan
F. Potter, Lieutenant Colonel Matthew M. Miller, Captain E.
Patrick Gilman, and Captain William Jeremy Stephens (on
brief) -- for the United States Army, Defense Appellate
Division; Major Kirk Sripinyo (on brief) -- for the United
States Navy-Marine Corps, Defense Appellate Division;
Michelle M. Lindo McCluer, Esq., Jonathan E. Tracy, Esq.,
and Stephen A. Saltzburg, Esq. (on brief) -- for the
National Institute of Military Justice; Donald G. Rehkopf
Jr., Esq. (on brief) -- for the National Association of
Criminal Defense Lawyers.
Amicus Curiae for Appellee: Colonel Norman F. J. Allen
III, Lieutenant Colonel Martha L. Foss, and Major Lisa L.
Gumbs (on brief) -- for the United States Army, Government
United States v. Blazier, No. 09-0441/AF
Appellate Division; Lieutenant Commander Sergio Sarkany,
JAGC, USN (on brief) -- for the United States Navy-Marine
Corps, Government Appellate Division; Captain S. P.
McCleary (on brief) -- for the United States Coast Guard,
Government Appellate Division.
Military Judge: Joseph S. Kiefer
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
2
United States v. Blazier, No. 09-0441/AF
Judge RYAN delivered the opinion of the Court.
In United States v. Blazier (Blazier I), 68 M.J. 439(C.A.A.F. 2010), we considered the admissibility of two
multi-page drug testing reports from the Air Force
Institute for Operational Health, Drug Testing Division
(“the Brooks Lab”) in light of Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009). Each report
included (1) a cover memorandum summarizing the tests the
urine samples were subjected to and the results of those
tests, and (2) attached records, the vast majority of which
were printouts of the machine-generated data from the drug
tests and machine calibrations, along with a specimen
custody document, intralaboratory chain of custody
documents for each of the laboratory tests conducted,
presumptive positive reports, and occasional handwritten
annotations.
The cover memoranda, prepared in response to a
Government request for use at court-martial, list the
results and the corresponding Department of Defense cutoff
levels for illegal substances, followed by the
certification and signature of a “Results Reporting
Assistant, Drug Testing Division”: Marina Jaramillo for
the June test and Andrea P. Lee for the July test. The
bottom portion of each memorandum is a signed and sworn
3
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declaration by Dr. Vincent Papa, the “Laboratory Certifying
Official,” confirming the authenticity of the attached
records and stating that they were “made and kept in the
course of the regular conducted activity” at the Brooks
Lab.
The drug testing reports, including the cover
memoranda, were admitted into evidence over defense
objection made in a motion in limine on Confrontation
Clause and hearsay grounds. Dr. Papa testified at trial
about procedures at the Brooks Lab and the different
urinalysis tests conducted at the lab. He also testified
about the drug testing reports, explaining the significance
of nearly every page and often repeating the substance
contained on them. Dr. Papa stated that based upon his
review of the reports, as well as his knowledge, training,
and experience, the drug tests were reliable and that
Appellant had tested positive for methamphetamine and
marijuana. The defense objected to this testimony in its
motion in limine on the ground that its substance was
inadmissible hearsay in violation of the Confrontation
Clause and Military Rule of Evidence (M.R.E.) 801.
4
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We held in Blazier I that “at least the top portion of
the drug testing report memoranda . . . were testimonial.”1
68 M.J. at 443. As we explained:
Similar to the sworn certificates of
analysis in Melendez-Diaz, the top portion of the
drug testing report cover memoranda in this case
identify the presence of an illegal drug and
indicate the quantity present. And the
evidentiary purpose of those memoranda was
apparent, as they not only summarize and digest
voluminous data but were generated in direct
response to a request from the command indicating
they were needed for use at court-martial. This
is true regardless of the impetus behind the
testing, the knowledge of those conducting
laboratory tests at different points in time, or
whether the individual underlying documents are
themselves testimonial.
In another respect, however, the cases are
distinct. In Melendez-Diaz, the certificates
were introduced as evidence without more: no one
was subject to cross-examination about the
testing, procedures, or quality control, for
example, with respect to the results upon which
the certificates were based. See id. at 2531.
Here, while Dr. Papa did not personally perform
or observe the testing (other than reviewing the
bottle label for the first sample) or author the
cover memoranda, he was the certifying official
for the drug testing reports and was recognized
1
The Government did not appeal this holding, which is the
law of the case. See United States v. Erickson, 65 M.J.
221, 224 n.1 (C.A.A.F. 2007) (holding that when a ruling is
not appealed, it “will normally be regarded as the law of
the case and binding upon the parties”). In any event, we
are satisfied that the signed, certified cover memoranda --
prepared at the request of the Government for use at trial,
and which summarized the entirety of the laboratory
analyses in the manner that most directly “bore witness”
against Appellant -- are testimonial under current Supreme
Court precedent. See Melendez-Diaz, 129 S. Ct. at 2532;
Crawford v. Washington, 541 U.S. 36, 51-53 (2004).
5
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as an expert in “the field of pharmacology area
of drug testing and forensic toxicology,” without
defense objection.
Id. (footnote omitted).
Dr. Papa was qualified as an expert in “‘the field of
pharmacology area of drug testing and forensic
toxicology,’” under M.R.E. 703 without defense objection
and testified in that capacity. Id. Neither Jaramillo nor
Lee testified; no showing was made that either individual
was unavailable or had been previously subject to cross-
examination. Id. at 440 n.2.
We thus invited briefing from the parties on the
following issues:
While the record establishes that the drug
testing reports, as introduced into evidence by
the prosecution, contained testimonial evidence
(the cover memoranda of August 16), and the
defense did not have the opportunity at trial to
cross-examine the declarants of such testimonial
evidence,
(a) was the Confrontation Clause
nevertheless satisfied by testimony from Dr.
Papa? See, e.g., Pendergrass v. Indiana,
913 N.E.2d 703, 707-08 (Ind. 2009). But
see, e.g., State v. Locklear, 363 N.C. 438,
681 S.E.2d 293, 304-05 (N.C. 2009); or
(b) if Dr. Papa’s testimony did not itself
satisfy the Confrontation Clause, was the
introduction of testimonial evidence
nevertheless harmless beyond a reasonable
doubt under the circumstances of this case
if he was qualified as, and testified as, an
expert under M.R.E. 703 (noting that “[i]f
of a type reasonably relied upon by experts
6
United States v. Blazier, No. 09-0441/AF
in the particular field in forming opinions
or inferences upon the subject, the facts or
data [upon which the expert relied] need not
be admissible in evidence in order for the
opinion or inference to be admitted”)?
Compare, e.g., United States v. Turner, 591
F.3d 928, 933-34 (7th Cir. 2010), and United
States v. Moon, 512 F.3d 359, 362 (7th Cir.
2008), with United States v. Mejia, 545 F.3d
179, 197-98 (2d Cir. 2008).
Id. at 444. We consider these issues below.
I.
The Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” U.S.
Const. amend. VI. Accordingly, no testimonial hearsay may
be admitted against a criminal defendant unless (1) the
witness is unavailable, and (2) the witness was subject to
prior cross-examination. Crawford, 541 U.S. at 53-54. The
outcome of this case depends on answers to three questions.
The first question is whether the Confrontation Clause is
satisfied with respect to the testimonial hearsay of
Jaramillo and Lee contained in the cover memoranda in light
of the fact that Dr. Papa -- who was at least as
knowledgeable as the declarants about both procedures at
the Brooks Lab generally and, in the Government’s view, the
substance of their testimony (i.e., the “substitute
7
United States v. Blazier, No. 09-0441/AF
witness”2 or “surrogate witness”3 theory) -- was subject to
cross-examination at trial. If the Confrontation Clause
was not satisfied, the second question is what Dr. Papa
could and did rely upon and convey in testifying that it
was his expert opinion that Appellant’s samples “were
subjected to valid, reliable, scientific and forensic
tests” and that methamphetamine and marijuana “were
accurately detected.” Finally, and relatedly, if evidence
was introduced at trial in violation of the Sixth Amendment
right to confrontation, the remaining question is whether
such constitutional violation was nullified because Dr.
Papa was qualified as and testified as an expert under
M.R.E. 702 and M.R.E. 703.
We hold that where testimonial hearsay is admitted,
the Confrontation Clause is satisfied only if the declarant
of that hearsay is either (1) subject to cross-examination
at trial, or (2) unavailable and subject to previous cross-
examination. We further hold that an expert may,
consistent with the Confrontation Clause and the rules of
2
See People v. Benitez, 106 Cal. Rptr. 3d 39, 45 (Cal. Ct.
App. 2010) (describing a laboratory supervisor testifying
in place of the analyst as a “substitute witness”), review
granted and opinion superseded by 230 P.3d 1117 (Cal.
2010).
3
See Jennifer L. Mnookin, Expert Evidence and the
Confrontation Clause After Crawford v. Washington, 15 J.L.
Pol’y 791, 834 (2007) (describing a reliable witness other
than the declarant as a “surrogate”).
8
United States v. Blazier, No. 09-0441/AF
evidence, (1) rely on, repeat, or interpret admissible and
nonhearsay machine-generated printouts of machine-generated
data, see, e.g., Moon, 512 F.3d at 362; United States v.
Washington, 498 F.3d 225, 230-31 (4th Cir. 2007), and/or
(2) rely on, but not repeat, testimonial hearsay that is
otherwise an appropriate basis for an expert opinion, so
long as the expert opinion arrived at is the expert’s own,
see, e.g., United States v. Ayala, 601 F.3d 256, 275 (4th
Cir. 2010) (quoting United States v. Johnson, 587 F.3d 625,
635 (4th Cir. 2009)); Mejia, 545 F.3d at 198; United States
v. Law, 528 F.3d 888, 912 (D.C. Cir. 2008). However, the
Confrontation Clause may not be circumvented by an expert’s
repetition of otherwise inadmissible testimonial hearsay of
another. Mejia, 545 F.3d at 198.
II.
As a threshold matter, we consider whether the
admission of the testimonial hearsay of Jaramillo and Lee
was “cured” because Dr. Papa testified and was subject to
cross-examination. We hold that it was not.
While reasonable minds may disagree about what
constitutes testimonial hearsay, there can be no
disagreement about who is the “witness” the accused has the
right to confront. That “witness” is the declarant. See
Crawford, 541 U.S. at 51 (“The text of the Confrontation
9
United States v. Blazier, No. 09-0441/AF
Clause . . . applies to ‘witnesses’ against the accused --
in other words, those who ‘bear testimony.’” (quoting 2 N.
Webster, An American Dictionary of the English Language
(1828))); id. at 59 (“Testimonial statements of witnesses
absent from trial have been admitted only where the
declarant is unavailable, and only where the defendant has
had a prior opportunity to cross-examine.”); Melendez-Diaz,
129 S. Ct. at 2537 n.6 (“The analysts who swore the
affidavits provided testimony against Melendez-Diaz, and
they are therefore subject to confrontation.”).
Accordingly, the right of confrontation is not satisfied by
confrontation of a surrogate for the declarant. See, e.g.,
United States v. Martinez-Rios, 595 F.3d 581, 586 (5th
2010); Locklear, 681 S.E.2d at 305; Commonwealth v. Avila,
912 N.E.2d 1014, 1029 (Mass. 2009).
Furthermore, “reliability” is no substitute for this
right of confrontation. As the Supreme Court explained,
Where testimonial statements are involved .
. . . [The Sixth Amendment] commands, not that
evidence be reliable, but that reliability be
assessed in a particular manner: by testing in
the crucible of cross-examination. The Clause
thus reflects a judgment, not only about the
desirability of reliable evidence . . . but about
how reliability can best be determined.
Crawford, 541 U.S. at 61; see also Melendez-Diaz, 129 S.
Ct. at 2536 (“Respondent and the dissent may be right that
10
United States v. Blazier, No. 09-0441/AF
there are other ways -- and in some cases better ways -- to
challenge or verify the results of a forensic test. But
the Constitution guarantees one way: confrontation. We do
not have license to suspend the Confrontation Clause when a
preferable trial strategy is available.”). While
“reliability” is the end, the right of confrontation is the
means, and it is the means (rather than the end) that the
Sixth Amendment insists upon.
The Government nonetheless argues that admission of
the testimonial hearsay of Jaramillo and Lee did not
violate the Confrontation Clause because Dr. Papa was “the
more logical and ideal witness from the lab,” and “a
properly and fully qualified expert witness . . . ideally
suited to explain, interpret, and admit Appellant’s drug
tests.” But Crawford overruled the “particularized
guarantees of trustworthiness” test established in Ohio v.
Roberts, 448 U.S. 56, 66 (1980), and abandoned the focus on
substantive reliability in favor of the inexorable demand
for cross-examination of the declarant of testimonial
hearsay. Thus, while no one questions Dr. Papa’s status as
a qualified expert, this does not permit him to convey the
testimonial hearsay of others. Substitute means of
ensuring reliability do not satisfy the Confrontation
Clause, no matter how efficacious they might be.
11
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Some of the cases the Government cites to the contrary
are distinguishable from this case in that they either (1)
consider out-of-court statements that, unlike the hearsay
we held testimonial in Blazier I, were deemed not
testimonial, see, e.g., People v. Lovejoy, 919 N.E.2d 843,
869-70 (Ill. 2009); State v. Appleby, 221 P.3d 525, 551
(Kan. 2009); or (2) deal not with the admission of
testimonial hearsay, as happened in this case, but with
expert reliance on that unadmitted hearsay in forming
opinions, Turner, 591 F.3d at 934 (noting that the hearsay
relied upon “was not admitted into evidence, let alone
presented to the jury in the form of a sworn affidavit,
‘functionally identical to live, in-court testimony . . .
.’” (quoting Melendez-Diaz, 129 S. Ct. at 2532)).
And contrary to the Government’s view on the
precedential value of a denial of certiorari, see Teague v.
Lane, 489 U.S. 288, 296 (1989); Eugene Gressman et al.,
Supreme Court Practice 334 (9th ed. 2007), we are not bound
by the Supreme Court of Indiana’s decision in Pendergrass,
913 N.E.2d at 707-08, cert. denied, 130 S. Ct. 3409 (2010).
The Supreme Court of Indiana found that, under Melendez-
Diaz, the statements of two non-testifying declarants were
testimonial, id. at 707, but went on to hold that the right
of confrontation was satisfied because the defendant “had
12
United States v. Blazier, No. 09-0441/AF
the opportunity to confront at trial two witnesses who were
directly involved in the substantive analysis, unlike
Melendez-Diaz, who confronted none at all,” id. at 708.
Of course, in this case Dr. Papa was not personally or
directly involved in the substantive analyses at all.
Moreover, we respectfully disagree with the principle the
Government draws from Pendergrass -- that “the chief
mechanism for ensuring reliability of evidence is . . .
cross-examination” of someone. See id. That principle is
incompatible with both Crawford and Melendez-Diaz; the
right of confrontation is the right to confront and cross-
examine the “witness” who made the “testimonial” statement.
In short, we hold that cross-examination of Dr. Papa
was not sufficient to satisfy the right to confront
Jaramillo and Lee, and the introduction of their
testimonial statements as prosecution exhibits violated the
Confrontation Clause.
III.
The answer to the question whether Dr. Papa’s
testimony satisfied the Confrontation Clause with respect
to the admission of the testimonial hearsay of Jamarillo
and Lee in the cover memoranda does not answer the
altogether different question as to the permissible bases
and content of Dr. Papa’s expert opinion testimony.
13
United States v. Blazier, No. 09-0441/AF
A qualified expert witness may give testimony in the
form of opinion if “(1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of
the case.” M.R.E. 702. With respect to the first
requirement, “[i]f of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or
inference to be admitted.” M.R.E. 703. However, such
inadmissible facts or data “shall not be disclosed to the
members by the proponent of the opinion or inferences
unless the military judge determines that their probative
value in assisting the members to evaluate the expert’s
opinion substantially outweighs their prejudicial effect.”
Id.
Dr. Papa was qualified as an expert witness without
defense objection based on his education and background, as
well as his personal knowledge of laboratory procedures at
the Brooks Lab. The question here is whether and to what
extent Dr. Papa’s testimony violated the Confrontation
Clause and/or M.R.E. 703 by relaying testimonial hearsay.
14
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We first note certain well-established principles, with
which we agree.
First, it is well-settled that under both the
Confrontation Clause and the rules of evidence, machine-
generated data and printouts are not statements and thus
not hearsay -- machines are not declarants -- and such data
is therefore not “testimonial.”4 United States v. Lamons,
532 F.3d 1251, 1263 (11th Cir. 2008); Moon, 512 F.3d at
362; Washington, 498 F.3d at 230-31; United States v.
Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005); United
States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003); see
also 4 Christopher B. Mueller & Laird C. Kirkpatrick,
Federal Evidence § 380 (2d ed. 1994) (“[N]othing ‘said’ by
a machine . . . is hearsay”). Machine-generated data and
printouts such as those in this case are distinguishable
from human statements, as they “involve so little
intervention by humans in their generation as to leave no
doubt they are wholly machine-generated for all practical
purposes.” Lamons, 532 F.3d at 1263 n.23. Because
machine-generated printouts of machine-generated data are
not hearsay, expert witnesses may rely on them, subject
4
M.R.E. 801(a) defines a “statement” as either an “oral or
written assertion” or “nonverbal conduct of a person, if it
is intended by the person as an assertion.” (emphasis
added). Furthermore, M.R.E. 801(b) defines “declarant” as
“a person who makes a statement.” (emphasis added).
15
United States v. Blazier, No. 09-0441/AF
only to the rules of evidence generally, and M.R.E. 702 and
M.R.E. 703 in particular.
Second, an expert witness may review and rely upon the
work of others, including laboratory testing conducted by
others, so long as they reach their own opinions in
conformance with evidentiary rules regarding expert
opinions. M.R.E. 702; M.R.E. 703; see also Moon, 512 F.3d
at 362; Washington, 498 F.3d at 228-32. An expert witness
need not necessarily have personally performed a forensic
test in order to review and interpret the results and data
of that test. See, e.g., Rector v. State, 681 S.E.2d 157,
160 (Ga. 2009) (holding that a toxicologist’s testimony was
not barred by the Confrontation Clause because the
toxicologist “had reviewed the work of the doctor who had
originally prepared the report and reached the same
conclusion that the victim’s blood sample tested negative
for cocaine”); Smith v. State, 28 So. 3d 838, 855 (Fla.
2009) (holding that a laboratory supervisor who did not
perform DNA tests could testify “because she . . .
formulated her own conclusions from the raw data produced
by the biologists under her supervision”).5
5
Melendez-Diaz, 129 S. Ct. at 2536-38, which explained at
length the myriad ways a laboratory analyst’s report could
be attacked on cross-examination and why the analyst whose
testimonial hearsay was admitted must be subject to cross-
16
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That an expert did not personally perform the tests
upon which his opinion is based is explorable on cross-
examination, but that goes to the weight, rather than to
the admissibility, of that expert’s opinion. See United
States v. Raya, 45 M.J. 251, 253 (C.A.A.F. 1996) (holding
that a social worker’s lack of personal interaction with or
observation of a victim went to the weight, and not the
admissibility of her testimony). Moreover, lack of
knowledge or unwarranted reliance on the work of others may
make an expert opinion inadmissible: the military judge,
in his capacity as a “gatekeeper,” see United States v.
Sanchez, 65 M.J. 145, 149 (C.A.A.F. 2007) (citing Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597
(1993)), must determine whether the opinion is “based upon
sufficient facts or data” and is the product of “reliable
principles and methods” reliably applied to the case. See
M.R.E. 702.6
examination, is not to the contrary. That case, which
involved the admission of testimonial hearsay, did not hold
that unadmitted forensic reports trigger the requirements
of the Confrontation Clause.
6
The fact that the Government may, consistent with the
rules of evidence and the Confrontation Clause, introduce
machine-generated data and expert testimony relying on the
work of others does not preclude an accused from seeking to
call as witnesses those who operated the machines or
performed the work being relied upon to test, among other
17
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Third, and relatedly, neither the rules of evidence
nor the Confrontation Clause permit an expert witness to
act as a conduit for repeating testimonial hearsay. Mejia,
545 F.3d at 198. An expert witness may review and rely
upon inadmissible hearsay in forming independent
conclusions, but he may not circumvent either the rules of
evidence, see M.R.E. 703 (prohibiting the proponent from
disclosing inadmissible facts and data relied upon by an
expert witness unless the military judge determines “that
their probative value in assisting the members to evaluate
the expert’s opinion substantially outweighs their
prejudicial effect”), or the Sixth Amendment by repeating
the substance of the hearsay. See Ayala, 601 F.3d at 275(“[T]he question when applying Crawford to expert testimony
is ‘whether the expert is, in essence, giving an
independent judgment or merely acting as a transmitter for
testimonial hearsay.’” (quoting Johnson, 587 F.3d at 635));
things, the accuracy, validity, and reliability of those
machines and tests. As the Compulsory Process Clause of
the Sixth Amendment, Article 46, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 846 (2006), and Rule for
Courts-Martial (R.C.M.) 703(a) make clear, a defendant has
the right to the compulsory process of witnesses who can
provide relevant and necessary evidence in their defense.
In other words, a live witness not required by the
Confrontation Clause because the Government admitted no
testimonial hearsay may nonetheless be called by the
defense, and attendance compelled upon a showing of
relevancy and necessity. Id.18
United States v. Blazier, No. 09-0441/AF
Law, 528 F.3d at 912 (holding that the Confrontation Clause
was not violated where the expert witness “did not relate
statements by out-of-court declarants to the jury,” but
based his conclusion on his experience as a narcotics
investigator).
Applying these principles to the instant case, many of
the documents contained in the drug testing reports are
machine-generated printouts of raw data and calibration
charts,7 and Dr. Papa’s testimony consisted in large part of
explaining and analyzing these documents. This portion of
Dr. Papa’s testimony was permissible because the documents
relied upon were not hearsay of any kind, let alone
testimonial hearsay.
Dr. Papa presented his ultimate conclusions as his
own. When asked to give an opinion, Dr. Papa testified
that based on his “training, education, and experience” it
was his opinion that the tests of Appellant’s samples were
conducted reliably and that Appellant’s urine showed traces
of methamphetamine in the first test and marijuana in the
second test.
7
By our count, machine printouts comprise 111 pages out of
the 128 pages (approximately 87 percent) in the June drug
testing report, and 19 pages out of the 32 pages
(approximately 59 percent) in the July drug testing report.
19
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Nonetheless, Dr. Papa’s testimony repeated at least
some testimonial hearsay of declarants who did not testify:
the cover memoranda were not only admitted into evidence,
but the substance of the testimonial hearsay contained
therein was repeated almost verbatim by Dr. Papa himself
when he testified that one of the summaries “tells you . .
. that we tested this particular specimen with our required
menu of screen, rescreen, and GCMS confirmation” and “shows
you what the results of the testing were.”
In short, although Dr. Papa may well have been able to
proffer a proper expert opinion based on machine-generated
data and calibration charts, his knowledge, education, and
experience and his review of the drug testing reports
alone, both the drug testing reports and Dr. Papa’s
testimony contained a mix of inadmissible and admissible
evidence. Specifically, the cover memoranda were
inadmissible under the Confrontation Clause, and Dr. Papa’s
testimony conveying the statements contained in those cover
memoranda -- including those concerning what tests were
conducted, what substances were detected, and the nanogram
levels of each substance detected -- were inadmissible
under both the Confrontation Clause and M.R.E. 703, while
the machine-generated printouts and data were not hearsay
20
United States v. Blazier, No. 09-0441/AF
at all and could properly be admitted into evidence and
serve as the basis for Dr. Papa’s expert conclusions.
IV.
The CCA viewed the drug testing reports in toto, and
decided this case on the ground that the “drug testing
results” were business records and not testimonial.8 United
States v. Blazier, 68 M.J. 544, 545-46 (A.F. Ct. Crim. App.
2008). Finding no error, the CCA did not have cause to
examine the effect of error on the case.
As noted supra, the testimonial cover memoranda were
admitted in violation of the Confrontation Clause. See
Blazier I, 68 M.J. at 443. In light of this admission and
Dr. Papa’s repetition of the cover memoranda in his
testimony, it is appropriate to consider harmlessness in
light of a constitutional error.
“For most constitutional errors at trial, we
apply the harmless error test set forth in
Chapman v. California, 386 U.S. 18 (1967), to
determine whether the error is harmless beyond a
reasonable doubt.” United States v. Upham, 66
M.J. 83, 86 (C.A.A.F. 2008). Evidence admitted
in violation of . . . the Confrontation Clause of
the Sixth Amendment is subject to that standard.
8
As noted in Melendez-Diaz, statements prepared in
anticipation of litigation (as at least the cover memoranda
clearly were), are not business records and, even if a
document might otherwise be a business record, if it is
testimonial hearsay, its admission violates the
Confrontation Clause. 129 S. Ct. at 2538-40.
21
United States v. Blazier, No. 09-0441/AF
United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F.
2009). Dr. Papa could have arrived at an expert opinion
based on training, education, experience, and admissible
evidence alone, and considered, but not repeated,
inadmissible evidence in arriving at an independent expert
opinion. Such expert opinion and admissible evidence
together could have been legally sufficient to establish
the presence of drug metabolite in the urine tested. See
United States v. Barrow, 45 M.J. 478, 479 (C.A.A.F. 1997).
But in assessing harmlessness in the constitutional
context, the question is not whether the evidence is
legally sufficient to uphold a conviction without the
erroneously admitted evidence. See Fahy v. Connecticut,
375 U.S. 85, 86 (1963). Rather, “‘[t]he question is
whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.’”
Chapman, 386 U.S. at 23 (quoting Fahy, 375 U.S. at 86-87).
This determination is made on the basis of the entire
record, and its resolution will vary depending on the facts
and particulars of the individual case.
In this case the parties have confined their harmless
error arguments to the specified harmless error issue --
the effect of Dr. Papa’s testimony. The parties have not
addressed whether or not the constitutional error was
22
United States v. Blazier, No. 09-0441/AF
harmless in light of the entire record. Having answered
the specified issues, we remand this case for the parties
to brief, and the CCA to resolve in the first instance --
on the basis of the entire record -- whether the admission
of the drug testing report cover memoranda and Dr. Papa’s
repetition of the contents of such memoranda were harmless
beyond a reasonable doubt.9
Accordingly, the decision below is reversed. The
record is returned to the Judge Advocate General of the Air
Force for remand to the Court of Criminal Appeals.
9
Consistent with the principles articulated in Melendez-
Diaz, Crawford, United States v. Magyari, 63 M.J. 123(C.A.A.F. 2006), United States v. Harcrow, 66 M.J. 154(C.A.A.F. 2008), Blazier I, and this case, the CCA may
determine whether any other documents within the drug
testing reports for the June and July tests (such as
certifications that all procedures were properly followed
on the specimen custody documents) were testimonial or
utilized in violation of M.R.E. 703 if necessary to its
decision.
23