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Certiorari Denied, September 15, 2010, Docket No. 32,559

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-092

Filing Date: July 20, 2010

Docket No. 26,811

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

PHILBERT NEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY

Grant L. Foutz, District Judge

Gary K. King, Attorney General

Santa Fe, NM

Ralph E. Trujillo, Assistant Attorney General

Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Stephanie Erin Brunson, Assistant Appellate Defender

Adrianne R. Turner, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} This case comes to us on remand from our Supreme Court in State v. Nez, No. 31,703

for further consideration in light of State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487,

226 P.3d 1, and State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280. See Order
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of Remand and Mandate, State v. Nez, No. 31,703, entered March 2, 2010. We note at the

outset that Bullcoming overruled one aspect of the decision in State v. Dedman, 2004-

NMSC-037, 136 N.M. 561, 102 P.3d 628, as we discuss in more detail later in this opinion.

In this Court’s memorandum opinion filed in the present case on April 20, 2009, which was

the subject of the certiorari proceeding in the Supreme Court from which the foregoing

remand emanated, we upheld the admission of a blood-alcohol-content (BAC) report based

on the precedent set in Dedman. State v. Nez, No. 26,811, slip op. at 23-27 (Ct. App. Apr.

20, 2009). We address on remand whether Bullcoming or Aragon change our conclusion in

the memorandum opinion that the district court did not err by admitting the report into

evidence.

{2} To set the stage, we first discuss Dedman, and we then discuss Defendant’s

arguments on appeal in the present case and the decision contained in our memorandum

opinion. Following that, we discuss Bullcoming (and only touch on Aragon), which

necessarily includes discussion of Melendez-Diaz v. Massachusetts, ___ U.S. __, 129 S. Ct.

2527 (2009). We then return to the present case, focusing on Defendant’s arguments and the

evidence specifically on the issue at hand, namely whether the district court abused its

discretion in admitting the BAC report where, Defendant argued, the State failed to present

non-hearsay testimony sufficient to establish the method used to draw his blood and the

qualifications of the blood drawer. We conclude our discussion with our holding that neither

Bullcoming nor Aragon overruled Dedman on this particular issue and that, under Dedman,

as well as under Bullcoming, under the facts in the present case the report was properly

admitted into evidence. We also discuss Defendant’s argument that his Sixth Amendment

confrontation right was denied because he did not have an opportunity to cross-examine the

person who drew his blood. We conclude that Defendant’s confrontation right was not

violated by the absence of the blood drawer from trial.

Dedman

{3} In Dedman, the prosecution contended that a veni-puncture method used to draw a

blood sample ultimately tested for BAC “did not affect the admissibility of the blood alcohol

report” and also that the unavailability of the nurse who drew the blood sample to testify at

trial did not require the exclusion of the report on Sixth Amendment confrontation grounds.

2004-NMSC-037, ¶ 1. The Court determined that the failure to comply with a regulation

setting out the veni-puncture requirement did not render the test results wholly unreliable

and did not justify exclusion of the report. Id. ¶ 21. The Court also determined that the

report qualified as a public record, that the report was prepared in a non-adversarial setting

and was not investigative or prosecutorial, and that the report was admissible under the

public record exception to the hearsay rule. Id. ¶ 24. Noting that the right of confrontation

required “an independent inquiry that is not satisfied by a determination that evidence is

admissible under a hearsay exception,” id. ¶ 25, the Court explored whether the defendant’s

confrontation right was violated. Id. ¶¶ 26-36. The Court held that the report was not

testimonial evidence under Crawford v. Washington, 541 U.S. 36 (2004). Dedman, 2004-

NMSC-037, ¶ 30. The Court also held that the testimony of the toxicologist who prepared

the report and of the officer in whose presence the blood was drawn “provided sufficient

foundation for [the] admission of the report and that [the] lack of opportunity to cross-
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examine the nurse who drew the sample did not violate [the d]efendant’s confrontation

rights.” Id. ¶¶ 1, 30, 45.

Defendant’s Arguments on Appeal and Our Memorandum Opinion

{4} In the present case, Defendant argued on appeal that the district court erred in

admitting a report that contained the results of a test of a sample of his blood in that the State

failed to show that the blood was properly drawn under the Implied Consent Act and

Department of Health regulations by a qualified person. Nez, No. 26,811, slip op. at 23.

Defendant further argued that the report constituted impermissible hearsay that violated the

Confrontation Clause because the drawer of the blood was not present at trial and Defendant

did not have an opportunity to cross-examine that person about her qualifications and the

manner in which the blood sample was taken. Id. We noted in our memorandum opinion

that, in Dedman, our Supreme Court held that the absence of the blood drawer from trial and

the lack of testimony from the blood drawer as to the method in which he or she drew the

blood did not affect the admissibility of the report. Nez, No. 26,811, slip op. at 24; see

Dedman, 2004-NMSC-037, ¶¶ 4-5. We also noted that our Supreme Court had implicitly

rejected an argument such as Defendant is making in the present case, that Defendant’s

challenges were controlled by Dedman, and that we were bound to follow Dedman. Nez,

No. 26,811, slip op. at 24; see Dedman, 2004-NMSC-037, ¶ 21. We further noted that in

Dedman the Court held that the report was admissible under the public records exception to

the hearsay prohibition and did not constitute testimonial evidence, and we concluded, “[a]s

did the Dedman Court, . . . that Defendant’s right of confrontation provided no basis for

exclusion of the . . . report.” Nez, No. 26,811, slip op. at 27 (internal quotation marks and

citation omitted); see Dedman, 2004-NMSC-037, ¶¶ 24, 30, 45.

Bullcoming and Melendez-Diaz

{5} Based on Melendez-Diaz, in Bullcoming and Aragon our Supreme Court held that

crime laboratory reports of blood-alcohol test results (Bullcoming) and chemical forensic

reports of a substance determined to be methamphetamine (Aragon) were testimonial for the

purposes of the Confrontation Clause. Bullcoming, 2010-NMSC-007, ¶¶ 1, 13-16, 18;

Aragon, 2010-NMSC-008, ¶¶ 4, 6-9. The question at hand was then whether a defendant’s

right to confrontation was violated when the prosecution admitted the reports through the

testimony of an analyst who did not personally perform the testing or analysis required and

performed to obtain the test results in the reports. See Bullcoming, 2010-NMSC-007, ¶¶ 1,

19-20; Aragon, 2010-NMSC-008, ¶¶ 23-33. The two cases indicate that, under certain

circumstances, an analyst who is not the testing analyst but who testifies under Rule 11-703

NMRA based upon the underlying data in a report and not on opinion or analysis of another

analyst may testify in order to admit the report. See Bullcoming, 2010-NMSC-007, ¶¶ 23-

25; Aragon, 2010-NMSC-008, ¶¶ 23-25.

{6} For our purposes on remand, only Bullcoming, which overruled Dedman, is pertinent.

See Bullcoming, 2010-NMSC-007, ¶¶ 1, 16. In Bullcoming, the prosecution introduced a

blood-alcohol report that contained chromatograph-machine-generated results of the

defendant’s BAC, and it also contained chain of custody information in part identifying the

person who drew the blood and the date, time, and place of the blood draw. Id. ¶¶ 1, 6, 8,
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21. The report was admitted through the testimony of an analyst of the State Laboratory

Division (SLD) who was not the testing analyst. Id. ¶¶ 1, 6-9. The nurse who drew the

blood and the officer who observed the blood draw and also prepared and sent the blood kit

to SLD testified at trial and were available for cross-examination. Id. ¶ 8. The report was

admitted in evidence pursuant to the business-records exception to the hearsay rule. Id. ¶

9; see Rule 11-803(F), (H) NMRA. In analyzing the issue of the admissibility of the report,

our Supreme Court in Bullcoming addressed Melendez-Diaz, which had been decided after

Dedman and before Bullcoming. Bullcoming, 2010-NMSC-007, ¶¶ 13-20. 

{7} In Melendez-Diaz, the prosecution submitted sworn certificates that the Court

considered to be affidavits showing the results of forensic analysis establishing a substance’s

composition as cocaine. 129 S. Ct. at 2532; Bullcoming, 2010-NMSC-007, ¶ 13. The Court

held the affidavits were testimonial under Crawford. Melendez-Diaz, 129 S. Ct. at 2532.

Justice Scalia’s opinion for the majority explained that, under Crawford, affidavits were a

core class of testimonial statements subject to analysis under the Confrontation Clause, the

analysts’ sworn statements were affidavits, and, as such, the analyst affiants were witnesses

for purposes of the Sixth Amendment and thus subject to confrontation. Melendez-Diaz, 129

S. Ct. at 2531-32; Bullcoming, 2010-NMSC-007, ¶ 13. 

{8} Further, the Court in Melendez-Diaz stated that “[a]bsent a showing that the analysts

were unavailable to testify at trial and that petitioner had a prior opportunity to crossexamine them, petitioner was entitled to be confronted with the analysts at trial.” 129 S. Ct.

at 2532 (internal quotation marks omitted). However, the Court did not extend its decision

to encompass individuals who are merely involved in the chain of custody, stating, “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.” Id. at 2532 n.1; Bullcoming, 2010-

NMSC-007, ¶ 21. The dissent in Melendez-Diaz noted and the majority agreed that the

prosecution has the obligation to establish the chain of custody, but that did “not mean that

everyone who laid hands on the evidence must be called.” 129 S. Ct. at 2532 n.1, 2546

(Kennedy, J., dissenting); Bullcoming, 2010-NMSC-007, ¶ 21.

{9} Based on Melendez-Diaz, the Court in Bullcoming held that the blood-alcohol report

in the case was testimonial and overruled Dedman’s holding that laboratory reports were

non-testimonial. Bullcoming, 2010-NMSC-007, ¶¶ 12, 16, 18. The Court in Bullcoming

nevertheless also held that the defendant’s confrontation right was satisfied through crossexamination of the testifying analyst who was not the analyst who prepared the report

because the report-preparing analyst had simply transcribed the results generated by the gas

chromatograph machine to the report, had not exercised any independent judgment, and was

nothing more than a “mere scrivener.” Id. ¶ 19. The “true accuser,” the Court stated, was

not the analyst who transcribed the results into the report, but rather the machine that

“detected the presence of alcohol in [the d]efendant’s blood, assessed [the d]efendant’s

BAC, and generated a computer print-out listing its results.” Id. Thus, the Court

determined, “the live, in-court testimony of a separate qualified analyst [was] sufficient to

fulfill a defendant’s right to confrontation.” Id.
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{10} Recognizing that the report also contained information regarding chain of custody,

the Court in Bullcoming referred to Melendez-Diaz’s footnote regarding chain of custody

evidence and the confrontation right, and the Court in Bullcoming stated that Melendez-Diaz

“indicated that chain of custody information may not be testimonial under the Confrontation

Clause.” Bullcoming, 2010-NMSC-007, ¶ 21; see Melendez-Diaz, 129 S. Ct. at 2532 n.1.

The Court did not, however, pursue the Melendez-Diaz “indicated” chain of custody result

further. Instead, because in Bullcoming the defendant had the opportunity to cross-examine

the officer who arrested him and the nurse who drew his blood, and also because the record

reflected that the defendant was willing to stipulate that the nurse drew the blood properly,

the Court held that “[t]o the extent that [the d]efendant based his Confrontation Clause claim

on the chain of custody information contained in [the report], it is clear that his objection was

simply pro forma.” 2010-NMSC-007, ¶ 22. 

Defendant’s Arguments and the Evidence

{11} In the present case, Defendant argued on appeal that our Supreme Court’s

Dedman decision “was premised on an unproven assumption, nowhere mentioned in the

record proper of that case, that it was in fact a nurse, or another meeting [NMSA 1978,

Section 66-8-103 (1978)]’s express requirements, who drew the defendant’s blood on the

occasion in question.” Defendant noted that in cases prior to Dedman the Court had

indulged in no such assumptions. Defendant argued that in the present case neither the

officer nor the toxicologist who testified “was qualified to testify as to the manner in which

the blood was drawn or to verify the accuracy with which the blood[ ]drawer obtained the

blood sample.” He argued further that “[t]here was no testimony regarding the identity of

the blood[ ]drawer that was not hearsay and absolutely no testimony regarding the person’s

qualifications or whether the dual purposes of safety and reliability were met.”

{12} In short, Defendant’s position was that the State did not present any non-hearsay

testimony sufficient to establish the method used to draw blood and the qualifications of the

blood drawer and, therefore, the district court abused its discretion in admitting the report.

More specifically, Defendant argued that the State failed to lay the necessary foundation to

show compliance with Section 66-8-103 which reads, in part, that “[o]nly a physician,

licensed professional or practical nurse or laboratory technician or technologist employed

by a hospital or physician shall withdraw blood from any person in the performance of a

blood-alcohol test.” Defendant also argued that the State did not show as required by the

law and regulations that the blood samples were collected “in the presence of the arresting

officer or other responsible person who can authenticate the samples,” and “within two hours

of arrest” and not using “[e]thyl alcohol . . . as a skin antiseptic,” and preserving the sample

in “an SLD-approved blood collection kit [that contains] two or more sterile tubes with

sufficient sodium fluoride so that the final concentration shall contain not less than 1.0

percent sodium fluoride.” 7.33.2.12 NMAC (2/21/01), reprinted as amended in

7.33.2.15(A)(1), (2), (3) NMAC (4/30/10).

{13} At trial in the present case, Sergeant Kendall, a deputy with the McKinley County,

New Mexico, Sheriff’s Department testified as follows. The deputy investigated the vehicle

crash in which Defendant was involved. One aspect of the investigation involved

Defendant’s suspected intoxicated status and a possible vehicular homicide. Deputy Kendall
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obtained a search warrant to extract Defendant’s blood. The blood was extracted at the

Gallup, New Mexico, Indian Medical Center. The blood draw had to be done by a medical

person. The deputy had an unused blood kit prepared for this purpose by the SLD. He also

had a form that went with the blood kit titled “Report of Blood Alcohol Analysis.” Deputy

Kendall observed Defendant’s blood being drawn in the emergency room by medical

personnel, namely, a nurse. He identified the completed report form, which contained his

signature. The nurse also signed the report form as “Jolene Richardson, R.N.” Deputy

Kendall testified that based upon his training and experience, “R.N.” is the abbreviation for

“registered nurse.” Although he had not previously met the blood drawer, and although he

did not have knowledge whether the blood drawer was licensed, Deputy Kendall testified

to having no concern at all that this person may have been impersonating a nurse and

observed that the nurse was appropriately dressed, had a stethoscope, and displayed from her

uniform a Gallup Indian Medical Center identification tag which included her picture, name,

and title. In drawing the blood, the nurse used the contents of the SLD-provided kit,

including a non-alcohol based swab to clean the arm prior to the blood extraction. After the

nurse inserted the needle into Defendant’s vein, she attached the first SLD-provided vacuum

tube to the needle that drew out a sample of Defendant’s blood, handed that tube directly to

Deputy Kendall, and then obtained another sample in the second SLD-provided vacuum

tube, which was also handed directly to the deputy. Deputy Kendall labeled and sealed the

two vials of blood and mailed the form and the kit containing the blood samples to the SLD.

Our Conclusions

{14} We hold that the foregoing evidence relating to the the blood drawer’s identity and

qualification and to the manner of drawing the blood satisfied the State’s foundation burden

for admission of the report sufficient to withstand Defendant’s objection to admission of the

report based on his view that the testimony did not establish the propriety of the blood draw

and the qualification of the blood drawer. See Dedman, 2004-NMSC-037, ¶¶ 1, 21, 30, 45

(holding that compliance with a particular blood-sample collection regulatory requirement

was not a prerequisite to the admissibility of the blood-alcohol report and that the testimony

of the toxicologist who prepared the report and of the officer in whose presence the blood

was drawn provided sufficient foundation for admission of the report), overruled on other

grounds by Bullcoming, 2010-NMSC-007, ¶¶ 1, 16, 18. We therefore see no basis on which

to hold that the report was inadmissible unless under Bullcoming it was inadmissible on

confrontation grounds. See Dedman, 2004-NMSC-037, ¶ 25 (“The right of confrontation

requires an independent inquiry that is not satisfied by a determination that evidence is

admissible under a hearsay exception.”), overruled on other grounds by Bullcoming, 2010-

NMSC-007, ¶¶ 1, 12, 16, 18.

{15} On the confrontation issue, in the present case a forensic toxicologist was qualified

as an expert and testified that he received the kit containing Defendant’s blood, he checked

the seals to assure they had not been tampered with, he tested Defendant’s BAC using a gas

chromatograph, and he prepared his report. He also testified that Defendant’s blood sample

came in a standard SLD blood kit, he checked the identifications on the specimen against the

Report of Blood Alcohol Analysis form, and he identified the blood-drawer’s signature on

the form as “Jolene Richardson, R.N.” and her employer “GIMC.” He further testified as

to the recording of the results of the lab tests “via the computer and the gas chromatograph”
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after which “a reviewer . . . reviews all the work [to] be sure that everything—all the criteria

[have] been met.” In addition, he testified that the results were placed on the form, and he

signed off on the form as an analyst for SLD. The toxicologist was thus available to be

cross-examined regarding the operation of the testing machine and the SLD’s procedures.

Defendant did not challenge the toxicologist’s testimony. Nor does Defendant attack

admission of the report on confrontation grounds based on the absence at trial of any SLD

analyst.

{16} Under Bullcoming, a defendant’s confrontation right is not violated and a bloodalcohol report of the results of a machine-tested blood sample may be admitted where an

otherwise qualified analyst testifies to the machine’s blood-test results that are recorded or

transcribed by a testing analyst who acts merely as a scrivener. See 2010-NMSC-007, ¶¶ 1,

19. Once, as here, the State has satisfied the blood-drawer qualification and blood-draw

method foundation requirements for admission of the test results, we see no basis on which

to deny admission of the blood-alcohol report on confrontation grounds because the blood

drawer is not present at trial to be cross-examined. After blood-drawer qualification and

blood-draw procedure foundational requirements are out of the way, the need to crossexamine the blood drawer is reduced to questions of the chain of custody. As we read

Melendez-Diaz and Bullcoming’s reference to the Melendez-Diaz footnote, the absence of

the blood drawer from trial and opportunity for a defendant to cross-examine the blood

drawer relating to chain of custody does not provide grounds for a confrontation objection

to the admissibility of a blood-alcohol report.

CONCLUSION

{17} We hold that Bullcoming does not change our conclusion in our April 20, 2009,

memorandum opinion that the district court did not err by admitting the report of the test

results of Defendant’s BAC into evidence. We therefore see no basis on which to change

or overrule, and we affirm, this Court’s ultimate disposition in our April 20, 2009,

memorandum opinion, reversing Defendant’s DWI conviction and remanding it to the

district court with instructions to vacate Defendant’s conviction for DWI on double jeopardy

grounds and affirming Defendant’s remaining convictions.

{18} IT IS SO ORDERED. 

____________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________

CYNTHIA A. FRY, Chief Judge

____________________________________

JAMES J. WECHSLER, Judge
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Topic Index for State v. Nez, Docket No. 26,811

CT CONSTITUTIONAL LAW

CT-CT Confrontation

EV EVIDENCE

EV-AE Admissibility of Evidence

EV-BT Blood/Breath Tests

EV-CC Chain of Custody

EV-HR Hearsay Evidence

GV GOVERNMENT

GV-IA Implied Consent Act