Opinion
Court of Appeals No. A-10373.
October 27, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-08-393 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
William B. Hamilton was convicted of felony driving under the influence based, in part, on the results of a breath alcohol test. Hamilton argues that the trial court violated his constitutional right to confront the witnesses against him by admitting documents showing that the breath test machine had been properly calibrated, because he had no opportunity to cross-examine the individuals who prepared the reports.
In Abyo v. State, we held that reports verifying that a breath test machine has been properly calibrated are not the type of "testimonial" hearsay that implicates the confrontation clause. Because Hamilton has not shown that Ab yo is no longer good law, we conclude that Hamilton's right to confrontation was not violated. We therefore affirm his conviction.
166 P.3d 55 (Alaska App. 2007).
Facts and proceedings
A jury convicted Hamilton of driving under the influence. Based on his stipulation that he had two prior convictions for driving under the influence, he was convicted of a felony offense. He also pleaded guilty to driving with a revoked license.
AS 28.35.030(a), (n).
AS 28.15.291(a)(1).
At trial, to establish the admissibility and accuracy of Hamilton's breath test result, the State asked the superior court to admit documents showing that the calibration of the Datamaster machine had been verified before and after Hamilton's test, as required by regulation. Hamilton objected to the admission of these reports, arguing that the State had not laid a proper foundation for their admission because it had not called the individuals who prepared the reports to testify. Hamilton argued that if the verification reports were to be admitted as evidence against him at trial, he had a right under the confrontation clause to cross-examine the individuals who performed the verifications. The State countered that the verification reports were admissible under Abyo without the testimony of the individuals who prepared them.
13 Alaska Administrative Code (AAC) 63.100.
Superior Court Judge Eric Smith agreed with the State and admitted the documents. Judge Smith recognized that his ruling might be affected by a Massachusetts case then pending before the United States Supreme Court — Melendez-Diaz v. Massachusetts — but he concluded that in the meantime he was bound by Abyo, which held that verification of calibration reports are admissible in a driving under the influence prosecution, even if the defendant has not had the opportunity to cross-examine the individuals who created the reports.
___ U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
Why we conclude that the superior court properly admitted the reports
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, the United States Supreme Court held that the confrontation clause bars the government from introducing the "testimonial" statements of a witness who does not testify at trial, unless the government shows that the witness is unavailable to testify and that the defendant had a prior opportunity to cross-examine the witness about the hearsay statements. A prior statement that is not testimonial does not implicate the confrontation clause and is admissible as long as it falls within a hearsay exception. The Crawford Court did not define the term "testimonial,"
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Id., 541 U.S. at 59, 124 S. Ct. at 1369.
Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006).
Crawford, 541 U.S. at 68, 124 S. Ct. at 1374 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'").
but it enumerated three possible formulations of the "core class" of testimonial statements: [1] "[E]x parte in-court testimony or its functional equivalent . . . such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[]"; [2] "[E]xtrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions[]"; and [3] "[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]"
Id., 541 U.S. at 51-52, 124 S. Ct. at 1364 (citations omitted).
The Court indicated that business records, "by their nature" are not testimonial.
Id., 541 U.S. at 56, 124 S. Ct. at 1367.
In Abyo, the defendant argued, as Hamilton does in this case, that verification of calibration reports are "testimonial" evidence under Crawford. In rejecting Abyo's claim, we noted that most other courts had held that verification of calibration reports — whether admitted as business records or public records — are non-testimonial evidence under Crawford. In adopting that majority view, we explained that verification of calibration reports lack the characteristics of "testimonial" evidence, as they are prepared routinely under a regulatory requirement, not "in anticipation of litigation in a particular case."
Abyo, 166 P.3d at 58.
Id. at 59.
Id. at 60 (citing 13 AAC 63.100 AS 28.35.033(d)).
Hamilton argues that Abyo is no longer good law in light of the Supreme Court's recent decision in Melendez-Diaz. But Melendez-D iaz addressed a different type of hearsay evidence.
In Melendez-Diaz, a plurality of the Supreme Court held that the Sixth Amendment's confrontation clause prohibited the government from relying on laboratory technicians' sworn "certificates of analysis" to prove that the substance the police seized from the defendant was cocaine. The Court held that the certificates were testimonial hearsay because they were "functionally identical to live, in-court testimony." That is, the certificates were sworn affidavits offered to prove that the defendant had possessed cocaine of a certain quantity — "the precise testimony the analysts would be expected to provide if called at trial." The Court found that the technicians were aware when they created the reports that their only purpose was to provide evidence in a criminal trial.
Melendez-Diaz, 129 S. Ct. at 2532.
Id.
Id.
Id.
The dissenters in Melendez-Diaz warned that the plurality's definition of testimonial was broad enough to extend the right to confrontation to documents certifying that testing equipment had been properly calibrated. Justice Kennedy wrote:
Id. at 2545 (Kennedy, J., Roberts, C.J., Breyer, J., and Alito, J., dissenting).
Consider the independent contractor who has calibrated the testing machine. At least in a routine case, where the machine's result appears unmistakable, that result's accuracy depends entirely on the machine's calibration. The calibration, in turn, can be proved only by the contractor's certification that he or she did the job properly. That certification appears to be a testimonial statement under the Court's definition: It is a formal, out-of-court statement, offered for the truth of the matter asserted, and made for the purpose of later prosecution.
Id. at 2545 (Kennedy, J., Roberts, C.J., Breyer, J., and Alito, J., dissenting) (internal citation omitted).
Justice Scalia, writing for the plurality, rejected this view:
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. . . . It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
Id. at 2532 n. 1 (internal citation omitted) (emphasis added to last sentence).
Although the Court's dicta was not definitive, many courts addressing the question since Melendez-Diaz have held that verification of calibration reports are not testimonial evidence and that the reports may be admitted without the testimony of the person who created the reports. For this conclusion, courts have relied primarily on the same factor we emphasized in Abyo: verification of calibration reports are performed routinely, not in anticipation of litigation in a particular case. In Melendez-Diaz, as just noted, the certificates were specifically prepared to prove that the substance seized from the defendant was cocaine.
See, e.g., People v. Chikosi, 110 Cal.R ptr.3d 464, 466-6 9 (Cal. App. 2010), review granted, 237 P.3d 415 (Cal. 2010); Ramirez v. State, 928 N.E.2d 214, 218-19 (Ind. App. 2010); State v. Johnson, 233 P.3d 290, 299 (Kan. App. 2010); People v. Lent, ___ N.Y.S.2d ___, 2010 WL 2802714 at *2-5 (N.Y. Sup. App. Term 2010); State v. Bergin, 217 P.3d 1087 (Or. App. 2009); Settlemire v. State, ___ S.W.3d ___, 2010 WL 2720590 (Tex. App. 2010); but see People v. Carreira,893 N.Y.S.2d 844, 846-51 (N.Y. City Ct. 2010) (holding that calibration testing records are testimonial, but acknowledging that the decision contradicts most other New York courts that have considered the issue).
Courts have also held that documents certifying the accuracy of speed-measuring devices are non-testimonial under Melendez-Diaz. See, e.g., United States v. Forstell, 656 F. Supp. 2d 578, 580-81 (E.D. Va. 2009); State v. Fitzwater, 227 P.3d 520, 530-31 (Haw. 2010).
See Chikosi, 110 Cal.Rptr.3d at 468; Ramirez, 928 N.E.2d at 219; Lent, 2010 WL 2802714 at *4; Bergin, 217 P.3d at 1089-90.
Melendez-Diaz, 129 S. Ct. at 2532.
Hamilton argues that the rationale of Melendez-Diaz nevertheless compels the conclusion that verification of calibration reports are testimonial evidence. He points out that the reports, though not prepared in anticipation of a particular criminal case, are prepared in anticipation of criminal litigation generally.
In Abyo, we specifically acknowledged that verification of calibration reports are prepared in anticipation of litigation in a general sense, but we nevertheless concluded, in line with the majority of courts, that the reports are not testimonial evidence and that they may be admitted without the testimony of the individuals who prepared them. As we have just explained, Melendez-Diaz did not disturb this holding; moreover, to the extent the Supreme Court did address this issue, it suggested that such reports are not testimonial. Hamilton has therefore not shown, as he must under the doctrine of stare decisis, that Abyo "was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." We therefore uphold the superior court's ruling that Hamilton's right to confrontation was not violated by admission of the verification of calibration reports.
Abyo, 166 P.3d at 60.
Beesley v. Van Doren, 873 P.2d 1280, 1283 (Alaska 1994) (quoting State v. Souter, 606 P.2d 399, 400 (Alaska 1980) (original citations omitted)).
Conclusion
We AFFIRM Hamilton's conviction.