STATE OF NEW JERSEY VS. WILLIAM REHMANN, JR.
Submitted February 3, 2011 - Decided
Before Judges Cuff, Fisher and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Municipal Appeal No. 0073-09.
Law Offices of Joseph A. Levin, attorneys
for appellant (Joseph A. Levin, on the
Theodore F.L. Housel, Atlantic County
Prosecutor, attorney for respondent (Jack J.
Lipari, Assistant Prosecutor, of counsel and
on the brief).
The opinion of the court was delivered by
In this appeal, defendant argues the Confrontation Clause
of the Sixth Amendment was violated when the State, in
attempting to prove his blood alcohol content, relied upon the
APPROVED FOR PUBLICATION
April 29, 2011
April 29, 2011
testimony of an expert who supervised but did not actually
perform the test on defendant's blood sample. We reject this
argument and affirm.
Following a motor vehicle accident, in which defendant
sustained personal injuries, defendant was issued summonses for
driving while under the influence of alcohol (DWI), N.J.S.A.
39:4-50, reckless driving, N.J.S.A. 39:4-96, careless driving,
N.J.S.A. 39:4-97, and failure to wear a seatbelt, N.J.S.A. 39:3-
76.2(f). At trial in municipal court, the State called Mark W.
Maxwell, a forensic scientist, to testify about defendant's
blood alcohol content (BAC). Maxwell testified that he did not
actually perform the test but instead observed another chemist,
Major Mitchell, examine defendant's blood sample with a gas
chromatograph; Mitchell was being retrained and required
supervision. Maxwell signed the laboratory report, certifying
the accuracy of the testing.
Defendant also argued, on the basis of his own expert's
testimony, that there was no scientific support for Maxwell's
application of a standard deviation of only five percent to the
results obtained from the gas chromatograph, which placed
defendant's BAC at .081, and above the legal limit. Defendant's
expert, the former Chief Forensic Scientist for the New Jersey
State Police Forensic Laboratories, testified that a deviation
figure between nine and ten percent should have been applied,
and if so, the result would place defendant's BAC below the
The municipal judge rejected defendant's argument that the
State's failure to call Mitchell violated the Confrontation
Clause. He also rejected the testimony of defendant's expert
and convicted defendant of a per se DWI violation, N.J.S.A.
39:4-50. As a third time offender, defendant was sentenced to a
180-day jail term; the municipal judge also imposed a ten-year
suspension of his operator's license and registration, a $1006
fine, and other financial penalties. The other summonses were
Defendant appealed to the Law Division. Judge Robert
Neustadter rejected all of defendant's arguments, including the
claim of a violation of the Confrontation Clause, in finding
defendant guilty of DWI; he imposed the same jail sentence and
other penalties as had the municipal judge.
Defendant appealed to this court, presenting the following
I. THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ADMITTING TESTIMONY AND THE LAB
REPORT INTO EVIDENCE THROUGH A CHEMIST THAT
DID NOT PERFORM THE TESTING, AS THE ADMISSION
OF SUCH EVIDENCE VIOLATED DEFENDANT'S
SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES
UNDER THE UNITED STATES CONSTITUTION, AS
WELL AS DEFENDANT'S CONCOMITANT RIGHTS UNDER
THE NEW JERSEY CONSTITUTION.
II. THE TRIAL COURT ERRED, IN ACCEPTING THE
STATE'S PROFFERED EVIDENCE REGARDING THE
DEVIATION IN TESTING, THEREBY RULING THAT
SUFFICIENT EVIDENCE EXISTED TO PROVE A PER
SE VIOLATION OF DRIVING WHILE INTOXICATED
UNDER N.J.S.A. 39:4-50a(2).
We find insufficient merit in Point II to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We also reject Point I for
the following reasons.
We start with the fundamental premise that the
Confrontation Clause contained in the Sixth Amendment, which
applies to the states by way of the Fourteenth Amendment,1
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him." The Supreme Court of the United States has held
that the Confrontation Clause bars the admission of
"[t]estimonial statements of witnesses absent from trial" except
"where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine."
Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369,
158 L. Ed. 2d 177, 197 (2004).
1Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L.
Ed. 2d 923, 927-28 (1965). In light of the disposition of this
appeal, we need not consider whether our state constitution's
Confrontation Clause, N.J. Const. art. I, ¶ 10, should be
interpreted more expansively than its federal counterpart.
The use of laboratory certificates was soon examined in the
wake of Crawford's limitation on the use of out-of-court
statements. In Melendez-Diaz v. Massachusetts, 557 U.S. __, 129
S. Ct. 2527, 174 L. Ed. 2d 314 (2009), the Court considered
whether the Confrontation Clause permitted, over defendant's
objection, the admission of "affidavits reporting the results of
forensic analysis[,] which showed that material seized by the
police and connected to the defendant was cocaine." Id. at __,
129 S. Ct. at 2530, 174 L. Ed. 2d at 319.2 The Court held that
the certificates of analysis in question were testimonial
because they constitute "solemn declaration[s] or affirmation[s]
made for the purpose of establishing or proving some fact." Id.
at __, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. As a result,
the Court concluded that "[t]he Sixth Amendment does not permit
the prosecution to prove its case via ex parte out-of-court
affidavits." Id. at __, 129 S. Ct. at 2542, 174 L. Ed. 2d at
Melendez-Diaz has had no significant impact on prosecutions
in this State. Prior to Melendez-Diaz, we recognized the
accused's right to confront the author of a BAC certificate.
2Specifically, the Court considered a Massachusetts statute that
permitted the admission of "certificates of analysis" as "prima
facie evidence of the composition, quality, and the net weight
of the narcotic analyzed." Id. at __, 129 S. Ct. at 2531, 174
L. Ed. 2d 320 (quoting Mass. Gen. Laws, ch. 111, § 13).
See State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007);
State v. Berezansky, 386 N.J. Super. 84, 89 (App. Div. 2006).
And in 1987, the Legislature enacted a procedure that requires
pretrial notice, and consent, before a laboratory certificate
may be used at trial, N.J.S.A. 2C:35-19. The Supreme Court
recognized that its holding in Melendez-Diaz would not adversely
effect such procedures. Id. at __ n.3, 129 S. Ct. at 2534 n.3,
174 L. Ed. 2d at 323 n.3. But new difficulties, not previously
experienced by our courts, have followed in Melendez-Diaz's
wake, in particular the constitutional sufficiency of a witness
being called to testify about the laboratory results reached by
In 2010, the Supreme Court of New Mexico twice examined
this "surrogate witness" problem. In State v. Bullcoming, 226
P.3d 1, 6 (N.M. 2010), the Court considered the admission of
testimony from one state analyst as to the results of a gas
chromatography examination performed by another analyst, who was
on unpaid leave. Because, in the court's view, the examination
involved no "independent judgment" or "particular methodology,"
and just warranted the operator to transcribe the results from
the gas chromatograph machine, it determined that any qualified
analyst could testify as to its results; in essence, the court
determined that the analyst on leave "was a mere scrivener, and
[d]efendant's true 'accuser' was the gas chromatograph machine
which detected the presence of alcohol in [d]efendant's blood,
assessed [d]efendant's BAC, and generated a computer print-out
listing its results." Id. at 8-9. As a result, the court
concluded that the witness could provide the machine's results
because the information itself is not subject "to the
constraints of the Confrontation Clause" and is something that
experts in the field reasonably rely upon. Id. at 10. The
Supreme Court of the United States granted certiorari to review
that determination, Bullcoming v. New Mexico, __ U.S. __, 131 S.
Ct. 62, 177 L. Ed. 2d 1152 (2010), but has not yet ruled.
On the same day it decided Bullcoming, the Supreme Court of
New Mexico found a violation of the Confrontation Clause in a
slightly different circumstance in State v. Aragon, 225 P.3d
1280 (N.M. 2010). The facts in Aragon reveal that police
executed a search warrant and seized two clear plastic bags
containing whitish, crystal substances. Id. at 1282. At trial,
the prosecution called Eric Young, a chemist, who analyzed one
bag, to testify not only about the contents of that bag but also
the contents of the second bag, which was examined by another
chemist, Andrea Champagne. Ibid. Over objection, the trial
court admitted Champagne's report into evidence and allowed
Young to testify about Champagne's findings. Id. at 1282-83.
Relying on Melendez-Diaz, the court held that Champagne's report
was testimonial, and its admission without Champagne's testimony
would "open wide the door to avoidance of cross-examination."
Id. at 1287 (quoting Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.
Ct. 477, 481, 87 L. Ed. 645, 650 (1943)). The Aragon Court also
determined that Young's testimony about Champagne's findings was
barred by the Confrontation Clause, holding that "[e]xperts and
their opinions are not fungible when the testifying expert has
not formed an independent conclusion from the underlying facts
or data, but merely restates the hearsay opinion of a nontestifying
expert." Id. at 1291.
Our courts have yet to consider this surrogate-witness
problem. After careful consideration, we have no hesitation in
agreeing with Aragon that experts and their opinions are not
fungible; to hold otherwise would make a mockery of the
Confrontation Clause. We thus agree with the argument that the
Confrontation Clause is not satisfied by calling just anyone to
the stand to testify about laboratory tests or other scientific
results. A "straw man" will not do. The State must provide a
witness who has made an independent determination as to the
results offered.3 The right of cross-examination must be
3See United States v. Darden, 656 F. Supp. 2d 560, 561 (D. Md.
2009) (holding the right of confrontation was not violated by
meaningful and is not satisfied when the State calls a witness
whose knowledge is limited to the four corners of the laboratory
certification produced and executed by another.4
the testimony of a supervising toxicologist instead of the
testimony of the lab technicians who actually conducted the
tests on the blood); Vann v. State, 229 P.3d 197, 199-200
(Alaska App. 2010) (finding no violation where the lab
technician testified as to all five samples but only tested
three because she interpreted the data from other samples, and
the conclusions were her own); Smith v. State, 28 So.3d 838,
853, 855 (Fla. 2009) (finding no violation even though the State
failed to present the biologists who performed the DNA tests
because the testifying supervisor "formulated her own
conclusions from the raw data"); Reddick v. State, 679 S.E. 2d
380, 382 (Ga. App. 2009) (finding no violation despite the fact
that the testifying expert performed only one of two tests
because she reviewed both tests, came to her own independent
conclusion, and was entitled to base her opinion on data
collected by others); People v. Johnson, 940 N.E.2d 264, 266-70
(Ill. App. 2010) (finding no violation even though the
testifying expert did not conduct the tests because she based
her opinion on an independent review of the file).
4Our disposition of this appeal does not require a determination
of whether, as held in Bullcoming, it is the gas chromatograph
machine that is defendant's true accuser, and we, thus, need not
determine whether the results obtained from such a machine are
not constrained by the Confrontation Clause so long as someone
with expertise as to its operation is called to testify. In
State v. Chun, 194 N.J. 54, 146-47, cert. denied, __ U.S. __,
129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Court found
insufficient for confrontation purposes the notion that the raw
data generated by a diagnostic machine is the statement of the
machine and not its operator. The Court's consideration of that
notion, however, was rendered in the context of determining the
admissibility of the results of the Alcotest, which, "reports a
present, and not a past, piece of information or data" in the
circumstance where "nothing that the operator does can influence
the machine's evaluation of the information or its report of the
data." Id. at 147. The record here does not permit a
Here, the State called Maxwell to prove defendant's BAC.
Although Mitchell, and not Maxwell, operated the gas
chromatograph in examining defendant's blood sample, Maxwell
testified that he supervised the test. He claimed he had
personal knowledge of the equipment and the manner in which the
tests were performed and that he drew his own conclusions from
the information provided by the gas chromatograph. Indeed,
Maxwell executed the laboratory certification, thereby swearing
that it "fairly and accurately documents the type and results of
the analysis performed," that he is "the person responsible for
the analysis and the conclusions set forth in the" report, that
"the equipment used to perform the . . . analysis . . . was
functioning properly," and that the "test procedures used are
accurate, reliable, objective in nature, and performed on a
routine basis within the laboratory." In addition, Maxwell
testified that he observed Mitchell conduct the tests and was
with him "every step of the way" as if he performed the tests
himself because Mitchell was being retrained and, consequently,
was not allowed to test the samples by himself. The records
simultaneously created during the testing supported Maxwell's
assertions; Mitchell's initials appear next to the word
determination as to whether a similar conclusion may be reached
about the gas chromatograph and its operation.
"operator," and Maxwell's initials appear in the lower right
hand corner of each page, memorializing that he observed "the
physical movement of the sample into the vial." These records
further demonstrate that the testing was a joint effort.
Because he was the author of the laboratory certificate and
because he supervised another's operation of the gas
chromatograph, Maxwell was the appropriate person to be called
to testify about the results of the testing of defendant's blood
We lastly conclude that the State was not required to
produce Mitchell in addition to Maxwell to satisfy defendant's
confrontation rights. "[I]t is not the case, that anyone whose
testimony may be relevant in establishing . . . authenticity of
the sample, or accuracy of the testing device, must appear in
person as part of the prosecution's case." Melendez-Diaz,
supra, 557 U.S. at __ n.1, 129 S. Ct. at 2532 n.1, 174 L. Ed. 2d
at 322 n.1. Maxwell was able to thoroughly respond to all
questions posed about the testing and the meaning and
significance of the results obtained. The State was not
obligated to call Mitchell.
For all these reasons, we reject defendant's argument that
the Confrontation Clause was violated in these circumstances.