July 20, 2010 – State of New Mexico v. Philbert Nez, No. 26,811

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: July 20, 2010
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 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

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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

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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-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

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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.

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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

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information in part identifying the person who drew the blood and the date, time, and
place of the blood draw. 	Id. ¶¶ 1, 6, 8, 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;

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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 cross-examine 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 cross-examination of the testifying analyst who was not the

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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.
{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

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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

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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 obtained a search warrant to extract Defendant’s
blood. The blood was extracted at the Gallup, New Mexico, Indian Medical Center.

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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

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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

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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” 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
blood-alcohol 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

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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 cross-examine 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.

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{18} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Chief Judge
_________________________________
JAMES J. WECHSLER, Judge