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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

EARL DEAN ROBBINS, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12494 

rial Court No. 3PA-15-00461 CR 

O P I N I O N 

No. 2653 — August 23, 2019 

T

Appeal from the District Court, Third Judicial District, Palmer, 

John W. Wolfe, Judge. 

Appearances: Josie W. Garton, Assistant Public Defender 

(briefing), Renee McFarland, Assistant Public Defender (oral 

argument), and Quinlan Steiner, Public Defender, Anchorage, 

for the Appellant. Eric A. Senta, Assistant Attorney General, 

Office of Special Prosecutions, Anchorage, and Jahna 

Lindemuth, Attorney General, Juneau, for the Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, 

Senior Judge. * 

Judge MANNHEIMER. 

* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska 

Constitution and Administrative Rule 23(a). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This appeal raises a question regarding the scope of a criminal defendant’s 

right of confrontation — a question that has bedeviled the courts of this country since 

2004, when the United States Supreme Court re-interpreted the confrontation clause of 

the federal constitution in Crawford v. Washington. 1 

In Crawford, the Supreme Court held that the federal confrontation clause 

barsthegovernment fromintroducing “testimonial”hearsay againstacriminaldefendant 

unless the defendant had an earlier adequate opportunity to cross-examine the speaker. 

But Crawford, and the Supreme Court decisions that have followed in the wake of 

Crawford, still do not define how the Crawford rule should be applied to situations 

where an expert witness gives testimony that relies on laboratory testing that was 

performed by someone else. 

The defendant in the present case, Earl Dean Robbins, was arrested for 

driving under the influence after the police responded to the scene of a motor vehicle 

accident and discovered that Robbins (one of the drivers involved in the accident) was 

visibly impaired. 

Following his arrest, Robbinssubmitted to abreath test, butthis test showed 

that Robbins had no alcohol in his system. The police then obtained a sample of 

Robbins’s blood, and this blood sample was ultimately sent to the Washington State 

Toxicology Laboratory for testing. This laboratory testing showed that Robbins had 

several controlled substances in his system, in amounts that would likely have impaired 

his driving. 

At Robbins’s trial, the State presented these test results through the 

testimony of Andrew Gingras, a forensic toxicologist working at the Washington 

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 

– 2 – 2653
 

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laboratory. Here is a recapitulation of Gingras’s testimony regarding the testing of 

Robbins’s blood, viewed in the light most favorable to the trial court’s ruling: 

Robbins’s case was assigned to Gingras, but Gingras did not perform all 

the testing himself. Gingras personally tested Robbins’s blood for Xanax (alprazolam). 

Gingras also performed the preliminary test that detected Soma (carisoprodol) in 

Robbins’s blood. However, another analyst at the laboratory, Lindsay Lowe, performed 

the follow-up testing that determined the exact quantities of Soma (both the drug itself, 

carisoprodol, and its metabolite, meprobamate). 

After Lowe completed her testing of Robbins’s blood for Soma, Gingras 

examined the resulting test data and reviewed it for any abnormalities. Gingras testified 

that he found no abnormalities and that, based on his review of Lowe’s test data, he 

would have reached the same conclusions as Lowe about the levels of carisoprodol and 

meprobamate in Robbins’s blood. Accordingly, Gingras certified all the test results on 

behalf of the Toxicology Laboratory — both Gingras’s own testing for Xanax, and 

Lowe’s testing for Soma. 

On appeal, Robbins argues that the confrontation clause barred the State 

from presenting Gingras’s testimony about the results of the Soma testing. Robbins 

asserts that Gingras’s connection to the Soma testing was too attenuated to pass muster 

under the confrontation clause — that any testimony about those test results could only 

be given by the analyst who personally performed the tests, and that Gingras was an 

improper hearsay conduit for that testimony. 

– 3 – 2653
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Why we conclude that Gingras’s testimony about the Soma test results 

did not violate the confrontation clause 

Our analysis of Robbins’s case hinges on three court decisions: the United 

States Supreme Court’s decisions in Melendez-Diaz v. Massachusetts (2009), 2 and 

Bullcoming v. New Mexico (2011), 3 and this Court’s decision in Vann v. State (2010). 4 

Melendez-Diaz was the first time that the Supreme Court applied the 

Crawford confrontation rule to a criminal case that turned on the results of laboratory 

testing. The defendant in Melendez-Diaz was charged with unlawfully distributing 

cocaine. To prove that the substance in the defendant’s possession was cocaine, the 

government did not produce any live witness, but instead relied solely on affidavits 

prepared by the state crime laboratory. These affidavits declared that the laboratory had 

tested the substance, and that the substance was cocaine. 5 

The Supreme Court held that these affidavits were “testimonial hearsay”, 

that the introduction of these affidavits against the defendant violated the confrontation 

clause, and that the government was required to produce a live witness to testify about 

the results of the laboratory testing. 6 At the same time, however, the Court declared that 

the confrontation clause did not require live testimony from everyone involved in the 

testing process: 

2 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). 

3 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). 

4 229 P.3d 197 (Alaska App. 2010). 

5 Melendez-Diaz, 557 U.S. at 310, 129 S.Ct. at 2532. 

6 Melendez-Diaz, 557 U.S. at 310–11, 129 S.Ct. at 2532. 

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Contrary to the dissent’s suggestion, ... we do not hold, and 

it is not the case, that anyone whose testimony may be 

relevant in establishing the chain of custody, authenticity of 

the sample, or accuracy of the testing device, must appear in 

person as part of the prosecution’s case. 

Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. at 2532 n. 1 (emphasis added). 

One year after theSupremeCourt issuedits decision in Melendez-Diaz, this 

Court issued our decision in Vann v. State. The defendant in Vann was charged with 

sexual assault, and the central issue litigated at trial was the identity of the assailant: 

Vann claimed that he had never met the victim, and that he was elsewhere on the night 

of the crime. 7 

Toprovethat Vann was the one who sexually assaulted the victim, the State 

presented the testimony of Cheryl Duda, a forensic analyst employed by the Alaska State 

Crime Laboratory. Duda testified that the laboratory received and tested five genetic 

samples taken from Vann, from the crime victim, and from physical objects associated 

with the crime. Duda described how the laboratory tested the samples for DNA, and she 

also described the method for comparing the DNA profiles obtained from this testing. 

Based on the results of this testing and comparison, Duda asserted that Vann could not 

be excluded as the source of DNA found in the samples retrieved from the victim. 8 

The confrontation issue in Vann arose from the fact that Duda had 

personally tested only three of the five genetic samples. The other two samples were 

7 Vann, 229 P.3d at 199. 

8 Id. at 199–200. 

– 5 – 2653
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

tested by another DNA analyst in the Crime Laboratory, and this analyst did not testify 

at Vann’s trial. 9 

However, Duda testified that, after the other analyst tested the two genetic 

samples, Duda independently re-evaluated the other analyst’s conclusions. Specifically, 

Duda testified that she examined the other analyst’s “bench notes” to make sure that she 

followed proper testing protocols, and then Duda took the machine print-outs from the 

other analyst’s testing and independently conducted her own DNA comparison analysis. 

Based on this analysis, Duda stated that she reached the same conclusion as the other 

analyst — i.e., that Vann was not excluded as the source of the DNA found in the 

samples. 10 

On appeal, this Court concluded that Duda was properly allowed to testify 

about the test results obtained from all five genetic samples, even though she herself had 

personally tested only three of these samples. 

After surveying the decisions of other courts that had applied MelendezDiaz to this type of situation, we reached the following rule: If a witness is “simply a 

conduit” for the analysis performed by someone else — that is, if the witness simply 

“recapitulates” or “vouches for” the other person’s analysis — then the confrontation 

clause is violated. But if the witness offers their own independent analysis or conclusion, 

the witness’s testimony is permitted by the confrontation clause, even if the witness’s 

analysis or conclusion is based on data obtained from other people’s testing. Vann, 229 

P.3d at 206. 

One year after this Court decided Vann, the United States Supreme Court 

revisited this confrontation clause issue in Bullcoming v. New Mexico. The defendant 

9 Ibid. 

10 Id. at 200. 

– 6 – 2653
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in Bullcoming was charged with driving under the influence, and the government 

introduced evidence of laboratory testing performed on a sample of Bullcoming’s blood 

— testing which showed that Bullcoming’s blood alcohol level was .21 percent. 11 

The facts of Bullcoming differed from the facts of Melendez-Diaz because, 

in Bullcoming, the test results were introduced through the testimony of an expert 

witness from the laboratory. The problem was that this witness was not the analyst who 

tested Bullcoming’s blood. 12 Rather, the witness was a co-worker in the same 

laboratory. This witness was familiar with the testing apparatus and the testing 

procedures used by the laboratory, but he did not participate in or observe the testing of 

Bullcoming’s blood, nor did he independently review or certify the results of that 

testing. 13 

The Supreme Court concluded that this expert witness’s testimony violated 

the confrontation clause. Justice Ginsburg’s lead opinion is worded in a way which 

suggests that the confrontation clause requires the government to present the testimony 

of someone who personally participated in the testing of the sample. The lead opinion 

emphasized that proper operation of the laboratory testing machine “requires specialized 

knowledge and training”, and that “human error can occur at each step” of the testing 

process. 14 Justice Ginsburg pointed out that the testifying co-worker “could not convey 

what [the actual tester] knew or observed” during the testing process, nor could the 

co-worker “expose any lapses or lies on the certifying analyst’s part”. 15 

11 Bullcoming, 564 U.S. at 655–56, 131 S.Ct. at 2711–12. 

12 Id., 564 U.S. at 657, 131 S.Ct. at 2713. 

13 Id., 564 U.S. at 657, 661–62; 131 S.Ct. at 2712, 2715–16. 

14 Id. 564 U.S. at 654, 113 S.Ct. at 2711. 

15 Id., 564 U.S. at 661–62, 113 S.Ct. at 2715. 

– 7 – 2653
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JusticeGinsburgacknowledged that it was unlikely that theoriginal analyst 

would still have a specific memory of testing the blood sample in Bullcoming’s case, but 

she pointed out that requiring the analyst to testify in person would give Bullcoming’s 

defense attorney the opportunity to question the analyst in front of the jury concerning 

his proficiency, care, and veracity. 16 

Based on the content of Justice Ginsburg’s lead opinion, Robbins argues 

that Bullcoming effectively overruled key portions of this Court’s decision in Vann. In 

particular, Robbins argues that, in light of Bullcoming, an expert witness is prohibited 

from testifying that another forensic analyst followed proper testing procedures, or that 

this other analyst obtained accurate test results. 

But even though Justice Ginsburg’s lead opinion offers several good 

reasons for requiring live testimony from the forensic analyst who actually performed 

the testing, most courts have not read Bullcoming so broadly. 

The facts of Bullcoming presented a relatively easy confrontation issue — 

because, unlike the situation presented in Vann, the expert witness who testified at 

Bullcoming’s trial had absolutely no connection either to the testing of Bullcoming’s 

blood or to the review and analysis of the test results. Perhaps because of this, Justice 

Sotomayor concurred in the result of Bullcoming, but she wrote a separate opinion in 

which she emphasized what the Supreme Court was not deciding. 

First, Justice Sotomayor noted that Bullcoming did not involve a blood test 

that was performed for medical reasons or for some other purpose apart from criminal 

investigation. 17 

16 Id., 564 U.S. at 661 n. 7, 113 S.Ct. at 2715 n. 7. 


17 Bullcoming (concurrence of Justice Sotomayor), 564 U.S. at 672, 113 S.Ct. at 2722.
 

– 8 – 2653
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Second, she noted that Bullcoming was “not a case in which the person 

testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, 

connection to the scientific test at issue.” 18 

Third, Justice Sotomayor noted that Bullcoming was not a case in which an 

expert witness was asked for their “independent opinion about underlying testimonial 

reports that were not themselves admitted into evidence.” 19 

And finally, Justice Sotomayor noted that Bullcoming did not involve a 

situation where the government introduced the raw data obtained through testing and 

then asked an expert witness to analyze or interpret this data. 20 

Most courts have concluded that Justice Sotomayor’s concurrence limits 

the holding in Bullcoming. 21 We agree with this assessment. And based on Justice 

Sotomayor’s concurrence, we conclude that the confrontation clause did not prohibit the 

testimony offered by Andrew Gingras at Robbins’s trial. 

As we have explained, Justice Sotomayor pointed out in her concurrence 

that Bullcoming does not announce a rule for situations where the testifying witness is 

“a supervisor, reviewer, or someone else with a personal, albeit limited, connection to 

the scientific test at issue.” Our decision in Vann involved such a situation, and 

Robbins’s case does too. 

18 Id., 564 U.S. at 672–73, 113 S.Ct. at 2722. 

19 Id., 564 U.S. at 673, 113 S.Ct. at 2722. 

20 Id., 564 U.S. at 673–74, 113 S.Ct. at 2722. 

21 See, e.g., United States v. Summers, 666 F.3d 192, 200, 203 (4th Cir. 2011); Marshall 

v. People, 309 P.3d 943 (Colo. 2013), cert. denied sub nomine Marshall v. Colorado, 572 

U.S. 1136, 134 S.Ct. 2661, 189 L.Ed.2d 212 (2014); Disharoon v. State, 727 S.E.2d 465, 467 

(Ga. 2012); Jenkins v. State, 102 So.3d 1063, 1066–67 (Miss. 2012); State v. Watson, 185 

A.3d 845, 854–55 (N.H. 2018); Commonwealth v. Yohe, 39 A.3d 381, 388 (Pa. App. 2012); 

State v. Lopez, 45 A.3d 1, 13 (R.I. 2012). 

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As we have explained, the testing in Robbins’s case was performed by two 

forensic analysts: Gingras tested Robbins’s blood for Xanax, and Lindsay Lowe tested 

Robbins’s blood for Soma (and its metabolite, meprobamate). 

When Gingras testified as the State’s expert witness at Robbins’s trial, he 

did not claim to be Lowe’s “supervisor” in the sense of being hierarchically above her 

within the management structure of the crime laboratory. But Gingras testified that he 

was the forensic analyst who was personally assigned to Robbins’s case. Gingras 

explained that, even though Lowe conducted certain aspects of the testing (i.e., the 

testing to determine the precise level of Soma in Robbins’s blood), Lowe’s test results 

were forwarded to Gingras, and Gingras was responsible for reviewing those test results 

and certifying them (along with his own test results) as the official test results obtained 

by the Toxicology Laboratory. 

Giventhesecircumstances, weconcludethatGingras could properly testify 

regarding the results of the Soma testing performed by Lowe. 22 

We acknowledge that our resolution of this issue might appear to be at odds 

with our decision in McCord v. State, 390 P.3d 1184 (Alaska App. 2017). But, in fact, 

the same legal principle underlies our decisions in McCord and in the present case. 

As in the present case, the testing of McCord’s blood was performed at the 

Washington State Toxicology Laboratory, and the evidence regarding the presence and 

amountofthecontrolled substancein McCord’s bloodwasofferedthrough thetestimony 

of a forensic analyst (Lisa Noble) employed by that laboratory. But although Noble was 

assigned to McCord’s case, and although she conducted the initial screening of 

McCord’s blood sample, it was another analyst (Sarah Swenson) who performed the 

22 Accord, Marshall v. People, 309 P.3d 943, 949 (Colo. 2013), cert. denied, 572 U.S. 

1136, 134 S.Ct. 2661, 189 L.Ed.2d 212 (2014); Jenkins v. State, 102 So.3d 1063, 1069 (Miss. 

2012); State v. Watson, 185 A.3d 845, 856–860 (N.H. 2018). 

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testing that confirmed the presence and the amount of clonazepam, which turned out to 

be the only controlled substance in McCord’s blood. 23 

Noble only knew of the clonazepam in McCord’s blood because she read 

Swenson’s test results. 24 And Swenson was assigned to perform this testing because 

Noble herself was not certified to perform testing for that class of controlled 

substances. 25 

Thus, whileNoblemay have“reviewed”Swenson’s testresults in the sense 

that Swenson’s results were reported to Noble, Noble was not personally certified to 

perform this testing, and it is unclear to what extent Noble was able to independently 

analyze a test that she herself was not certified to perform — or to what extent Noble 

couldmeaningfully answer thequestionsthat McCord’sattorneymight haveposed about 

the testing process. Based on this record, we held that McCord’s right of confrontation 

was violated when the State introduced the evidence of the clonazepam in McCord’s 

blood through the testimony of Noble, rather than calling Swenson as a witness. 26 

In Robbins’s case, on the other hand, there was no dispute that Gingras 

could have tested Robbins’s blood for Soma as well as for Xanax. The task of testing 

Robbins’s blood for Soma was assigned to another analyst simply to divide the labor, 

and Gingras testified that, based on his review of the test data, he would have reached 

the same conclusions about the contents of Robbins’s blood. Given this evidentiary 

record, Gingras’s testimony about the results of the Soma testing did not violate 

Robbins’s right of confrontation. 

23 McCord, 390 P.3d at 1185, 1186. 

24 Id. at 1186. 

25 Id. at 1185. 

26 Id. at 1186. 

– 11 – 2653
 
 

Conclusion 

The judgement of the district court is AFFIRMED. 

– 12 – 2653