State v. Michael R. Griep

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Appeal No. 2009AP3073-CR Cir. Ct No, 2007CT1130
WISCONSIN COURT OF APPEALS

DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT, FI LED
V. MAY 15, 2013
MICHAEL R. GRIEP, Diane M Frenyen
Clerk of Suprene Court
DEFENDANT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, C,J., Neubauer, P.J., and Reilly, J.

Pursuant to WIS. STAT. RULE 809.61, this appeal is certified to the
Wisconsin Supreme Court for its review and determination.

ISSUE

Is an OWI defendant's right to confront the witnesses against him
violated when a supervisor of the state crime lab testifies that a lab report prepared
and certified by another, but unavailable, lab analyst establishes the defendant’ s
illegal blood alcohol concentration? Does it make a difference that the lab
supervisor said it was “his” opinion even though he did not perform any of the
testing himself and simply noted that the unavailable analyst followed the proper
protocol?

No. 2009AP3073-CR
2
Due to uncertainty of the answer to this question under Wisconsin
and United States Supreme Court precedents, as explained in more detail below,
we certify this question to our supreme court for resolution.
FACTS
In August 2007, Michael Griep was stopped for speeding. The
officer who stopped Griep smelled alcohol on Griep’s breath and asked how much
he had been drinking. Griep initially admitted to drinking two beers, but after
performing poorly on field sobriety tests he admitted having three or four. After
administering a preliminary breath test, the officer arrested Griep for drunk
driving.
Shortly after the arrest, the officer took Griep to a local hospital so
that a blood sample could be drawn. After observing a phlebotomist draw the
blood and place it in closed vials, the officer packaged the vials and related
paperwork together to be sent for testing. The phlebotomist drew the blood and
gave it to the officer after sealing the vials.
At Griep’s bench trial in July 2009, the phlebotomist testified under
oath about the procedures she followed to properly collect, seal, and label the
blood. Also testifying was the section chief for the state lab that tested the blood
sample after it was drawn, Patrick Harding. Harding did not, personally, conduct
or observe the tests of the blood sample in Griep’s case, but he testified in place of
the analyst who conducted the tests, Diane Kalscheur, who was not available at the
time of the trial.
Harding testified that he reviewed Kalscheur’s work processing the
blood sample. Over Griep’s objection, Harding testified that “all indications are

No. 2009AP3073-CR
3
that the procedures were followed” in performing the test, and that in his
“independent opinion” based upon the data set forth in the documentation of the
testing, “the alcohol concentration of Mr. Griep’s sample was 0.152 grams of
ethanol per 100 milliliters of blood.” On cross-examination, Harding admitted
that he could not testify regarding any personal observations such as how much
blood was in the test tube when it arrived at the state lab, whether there was
anything unusual about it, or whether the vacuum in the tube had been preserved.
Harding also testified that every analyst’s work was “peer reviewed” for “every
single sample” and “also is signed off by a supervisor or another person.”
Griep argued that while an expert may rely upon hearsay in forming
his or her expert opinion, admission of such evidence still violates the
confrontation clause if it prevents the defendant from cross-examining the person
who produced the inculpatory evidence, citing Melendez-Diaz v. Massachusetts,
557 U.S. 305, 307-09 (2009). He asserted that regardless of the testifying expert’s
knowledge of and reassurances concerning the lab’s policies and procedures
designed to prevent fraud and mistakes, an expert who did not physically perform
the testing “is not allowed to vouch for the competency and honesty of another
witness.”
The State pointed out that in Melendez-Diaz the problem was the
admission of a certified report at trial without any expert testimony. In contrast, in
Griep’s trial the state lab report was never admitted into evidence, but an expert
did testify in reliance on it. The State submitted that “an expert [testifying in
reliance upon] dat[a] produced by another person does not violate the
confrontation clause.” The State expressly relied upon State v. Barton, 2006 WI
App 18, ¶20, 289 Wis. 2d 206, 709 N.W.2d 93, which upheld the admission of
expert testimony essentially identical to the expert testimony against Griep,

No. 2009AP3073-CR
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reasoning that “[a] defendant’s confrontation right is satisfied if a qualified expert
testifies as to his or her independent opinion, even if the opinion is based in part
on the work of another.” Id.
The trial court agreed with the State that Melendez-Diaz was
distinguishable and that the holding in State v. Williams, 2002 WI 58, 253 Wis. 2d
99, 644 N.W.2d 919, see also Barton, 289 Wis. 2d 206, ¶20, was still good law.
An expert “cannot act as a mere conduit” for another’s opinion, but “can [rely] on
things that normally they would use to reach or render an opinion,” such as a
report of another expert’s testing.
FURTHER LEGAL DEVELOPMENTS DURING APPEAL
When this court originally took Griep’s appeal under submission, it
learned that the United States Supreme Court had accepted a petition in State v.
Bullcoming, 226 P.3d 1 (N.M. 2010). See Bullcoming v. New Mexico, 131 S. Ct.
62 (2010) (granting certiorari). Because the question presented in Bullcoming
was similar to the question in Griep’s appeal,1 we held Griep’s case in abeyance
pending the outcome of Bullcoming. The opinion of the United States Supreme
Court was delivered in 2011, Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).
Then, just as this court was about to undertake submission of Griep’s
appeal once again, it learned that the United States Supreme Court had granted
certiorari in another relevant case, People v. Williams, 939 N.E.2d 268 (Ill. 2010).
1 The question presented in Bullcoming was “[w]hether the Confrontation Clause
permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst
through the in-court testimony of a supervisor or other person who did not perform or observe the
laboratory analysis described in the statements.” Petition for a Writ of Certiorari at i, Bullcoming
v. New Mexico, No. 09-10876, 2010 WL 3761875.

No. 2009AP3073-CR
5
See Williams v. Illinois, 131 S. Ct. 3090 (2011) (granting certiorari). Once again,
we thought that resolution of the question presented to the Supreme Court2 would
affect Griep’s appeal, so we once again held Griep’s case in abeyance pending the
opinion of the United States Supreme Court, which was issued in 2012: Williams
v. Illinois, 132 S. Ct. 2221 (2012).
After Williams was announced, we ordered further briefing to
discuss the ramifications, if any, of Bullcoming and Williams upon Griep’s case.
Both parties filed thorough and well-considered briefs. In the supplemental
briefing, Griep argues that Barton was overruled by the United States Supreme
Court’s decision in Bullcoming, which held that admission of a certified report of
a test of the defendant’s blood alcohol concentration violated the confrontation
clause, when the analyst who conducted the testing was unavailable at trial and the
testifying expert had not conducted or observed any of the actual testing.
Bullcoming, 131 S. Ct. at 2713, 2717. The State counters in its supplemental
argument that “[n]othing in the judgment of Williams indicates that the [United
States Supreme Court’s] decision overrules ... Barton.” As the Wisconsin
Supreme Court is well aware, the plurality in Williams reasoned that the
underlying DNA profile prepared by an out-of-state expert was not being relied
upon for its truth, since the testifying expert’s opinion was not about the validity
of the underlying DNA profile, but merely that the profile matched a DNA profile
2 The question presented in Williams was, “[w]hether a state rule of evidence allowing
an expert witness to testify about the results of DNA testing performed by non-testifying analysts,
where the defendant has no opportunity to confront the actual analysts, violates the Confrontation
Clause.” Petition for a Writ of Certiorari at i, Williams v. Illinois, No. 10-8505, 2010 WL
6817830.

No. 2009AP3073-CR
6
found in a DNA databank. See id. at 2240. The Williams plurality also reasoned
that the out-of-state DNA profile was not the type of statement the Confrontation
Clause applies to, as it was prepared before any suspect had been identified. Id. at
2242-43. Though Justice Thomas, whose concurrence provided the vote that
affirmed the conviction in Williams, did not agree with any of the specific
reasoning of the plurality, he did agree with the broad proposition that the
evidence at issue was not “testimonial.” Id. at 2260-61. On this basis, the State
argues that the kernel to be taken from Williams is that the report in that case was
not testimonial. The State also points to the court of appeals decision in State v.
Deadwiller, 2012 WI App 89, ¶¶8-10, 343 Wis. 2d 703, 820 N.W.2d 149. We
know that the supreme court is very familiar with Deadwiller since it accepted the
petition to review in that case and heard oral arguments on April 10, 2013.
Suffice it to say, Griep argues that the unavailable lab expert’s report
in his case was testimonial because it was offered to prove the truth of the matter
asserted: that Griep had an unlawful amount of alcohol in his system while he was
driving. The State submits that the report was not presented for the truth of the
matter asserted but was only part of the underlying information that the testifying
expert used to form his own opinion on that question. Therefore, the State
maintains, Barton is still good law, as is Williams, 253 Wis. 2d 99, ¶20, which
concluded as follows:
[T]he presence and availability for cross-examination of a
highly qualified witness, who is familiar with the
procedures at hand, supervises or reviews the work of the
testing analyst, and renders [his or] her own expert opinion
is sufficient to protect a defendant’s right to confrontation,
despite the fact that the expert was not the person who
performed the mechanics of the original tests.

No. 2009AP3073-CR
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In short, this case requires resolution of alternate interpretations of
what the law is going to be in Wisconsin regarding confrontation clause challenges
as they apply to Wisconsin lab test results where a surrogate is the expert that
testifies. Do these cases mean that the testing analyst produced a report for the
truth of the matter asserted such that the confrontation clause is violated if he or
she is not available to testify? One can read Bullcoming to say so. Or is the
testing analyst’s report just that—a report—something that is not, by itself, made
for the truth of the matter asserted but rather part of the information that a
testifying expert uses to form his or her own opinion, which opinion is subject to
cross-examination? One can read Williams to mean that.
In light of the Wisconsin Supreme Court’s having undertaken review
of Deadwiller, we ask the court to also review this corollary case. The trial courts,
and this court, would benefit from the direction of our supreme court in answering
the questions posed in the preceding paragraph. The facts here are markedly
different than in the DNA cases but are similar to many, many OWI cases that fill
the dockets in this state. Even if we were to conclude that Barton has been
overruled, only the state supreme court has the power to overrule our past
decisions. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).
For these reasons, we respectfully certify this case to the supreme
court so that it can encapsulate the law regarding surrogate expert testimony in
Wisconsin.