Saturday, April 30, 2011



A-3291-09T3 ______________________________

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


April 29, 2011


April 29, 2011

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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

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figure between nine and ten percent should have been applied,

and if so, the result would place defendant's BAC below the

legal limit.

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









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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.

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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).

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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

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[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.

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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


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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


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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.

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"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.