Confrontation Rights Fully Apply to State‘s Forensic Experts

At issue in the 2012 New Mexico Court of Appeals case State v. Moncayo were the Defendant‘s rights under the 6th Amendment allows for confrontation of witnesses in criminal trial of the Sixth and Fourteenth Amendments of the U.S. Constitution and the New Mexico State Constitution.

The Facts

The Defendant was in possession of a substance believed to be cocaine at the time of his arrest. In preparation for trial a forensic analyst, Mandy Bergeron, completed a laboratory report finding that the substance in the Defendant‘s possession was in fact cocaine. It is undisputed by the parties that Ms. Bergeron was available to testify at Defendant‘s trial but she chose not to. Instead another analyst, Nick Beninato, testified in her place. Beninato did not personally test the substance in question or complete the report.

The Rule

The Court held that the admission of the report into evidence as well as the testimony of Beninato violated the Defendant‘s rights under the Confrontation Clause, because he was not permitted to question the analyst that actually tested the substance and wrote the report as to the chain of custody and preservation of evidence. This Court‘s opinion relied heavily on the United States Supreme Court decision of Bullcoming v. New Mexico along with a number of prior New Mexico cases.

Specifically, the New Mexico Supreme Court held in State v. Aragon that the “admission of a chemical report without the testimony of the preparing analyst violate[s] the defendant‘s confrontation right.” The United States Supreme Court reached a similar holding in Bullcoming v. New Mexico, and went on to explain that substitute testimony is permissible only when the witness that made the statement is unavailable and the defendant has had the opportunity to question the witness before the trial.

In the present case the parties do not dispute that Bergeron was available to testify at Defendant‘s trial but chose not to. The Defendant was also not given the opportunity to question her before the trial. Therefore, consistent with both Aragon and Bullcoming, the Court concluded that Bergeron‘s report was inadmissible and violated the Defendant‘s right to confrontation.

The court did note, consistent with Bullcoming, that it would be allowable for the expert to give independent testimony and opinion based upon the reports and testing prepared by another expert. However, in this case, the expert simply “parroted” the findings of the testing expert which was not allowable.

Not Harmless Error

In an effort to salvage the case the State argued that admission of the report was harmless error because the report amounted to cumulative evidence because there was already testimony in evidence that the substance in the Defendant‘s possession was cocaine. The State relied on the testimony of Beninato as well as the arresting officer‘s testimony that the substance was cocaine.

Regarding the testimony of Beninato, he relied entirely on the report of Bergeron. This testimony was admissible on confrontation grounds so it could not be also used as a basis for harmless error arguments. In effect, the State was trying to get the testimony in notwithstanding confrontation issues via the rules of evidence (expert may rely on inadmissible facts and data in offering his or her expert opinion) which the court would not allow.

The State also argued that the improper admission of the laboratory report was cumulative because Lieutenant Longley‘s testimony independently proved that the substance in Defendant‘s possession was cocaine. The State argued that Lieutenant Longley testified to his expertise working drug cases, and that he field tested the substance and determined that it was cocaine in an amount intended for sale. A careful review of the evidence revealed that Lieutenant Longley did not actually testify to the results of his field test, therefore, there was no evidence that what Defendant possessed was really cocaine.

Having determined that Beninato never actually testified as to his own opinion regarding the substance in Defendant‘s possession, and that the Lieutenant did not testify as to the results of his field test, the improper admission of the analyst‘s report into evidence was not harmless. Without the report and the testimony based on the report there was no evidence that the substance the Defendant possessed was cocaine.

DISCLAIMER

Related Reading:
New Mexico DWI/DUI Blood Draw Reports Subject to 6th Amendment Right to Confrontation of Witnesses
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
Confrontation Clause Requires In Court Testimony of Analyst in Drug Cases

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