 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 27,867

10 SCOTT D. JOHNSON,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Don Maddox, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Joel Jacobsen, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Eleanor Brogan, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 WECHSLER, Judge.
 1        Defendant appeals his conviction for trafficking a controlled substance. We

 2 previously issued a memorandum opinion affirming. The New Mexico Supreme

 3 Court subsequently granted certiorari, and reversed and remanded for reconsideration

 4 in light of recent developments relating to the Confrontation Clause of the Sixth

 5 Amendment to the U.S. Constitution. Thereafter, we issued a third notice of proposed

 6 summary disposition, proposing to reverse and remand. Both Defendant and the State

 7 have filed responsive memoranda. After due consideration, we remain unpersuaded

 8 by either party’s arguments.       We therefore reverse and remand for further

 9 proceedings.

10        At this juncture, two issues are presented. First, we consider whether certain

11 evidence was improperly admitted in violation of the Confrontation Clause. Second,

12 we address the sufficiency of the evidence to support Defendant’s conviction.

13        The first issue concerns evidence relating to the analysis of a substance to

14 determine its chemical makeup and, ultimately, its identification as crack cocaine. For

15 the reasons that follow, we conclude that this evidence was improperly admitted.

16        Over Defendant’s objections, the State called a scientist employed at the

17 Southern Forensic Laboratory (SFL), Eric Young, as a witness. [State’s AB 4, 6; Def.

18 MIS/MIO 6-7] In pertinent part, Mr. Young testified that a former SFL employee

19 named Danielle Elenbaas had tested a substance purchased by undercover police

                                              2
 1 officers. [State’s AB 4; Def. MIS/MIO 6] He explained that among other tests, Ms.

 2 Elenbaas had utilized a gas chromatograph or mass spectrometer, which generated a

 3 graph. [State’s AB 14-15] This graph, in turn, supplied information from which Ms.

 4 Elenbaas had ultimately concluded that the substance contained cocaine. [State’s AB

 5 4; Def. MIS/MIO 6-7]

 6        On cross-examination, Mr. Young admitted that he did not analyze the

 7 substance at issue or observe Ms. Elenbaas’ performance of the tests. [State’s AB 4;

 8 Def. MIS/MIO 7] Mr. Young indicated that he had simply reviewed Ms. Elenbaas’

 9 report before testifying. [Def. MIS/MIO 7]

10        The New Mexico Supreme Court recently addressed a nearly identical situation.

11 In the case of State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280, the

12 state offered a report identifying a substance as methamphetamine. The report had

13 been prepared by a non-testifying analyst from the SFL and was admitted through the

14 testimony of a substitute analyst who did not “observe, supervise, or participate in

15 either the analysis or the preparation of the report.” Id. ¶ 5. Ultimately, the Court held

16 that admission of the report without the testimony of the testing analyst violated the

17 defendant’s right to confrontation. Id. ¶ 33.

18         The Confrontation Clause problem in Aragon arose because the substitute

19 analyst had merely recited the non-testifying analyst’s opinion. Id. ¶ 23. Had the


                                               3
 1 substitute analyst testified as to his own opinion based upon the underlying data, the

 2 defendant’s right to confrontation would not have been offended. Id. ¶ 23. However,

 3 the substitute analyst testified that “he had neither seen, analyzed, nor treated any of

 4 the evidence [the non-testifying analyst] used to create her report.” Id. ¶ 28. Nor had

 5 he supervised the non-testifying analyst’s work. Id. His opinion was merely a

 6 restatement of the non-testifying analyst’s opinion. Because the non-testifying analyst

 7 “ostensibly used her training, skill, and knowledge to form an opinion that the

 8 substance in question was methamphetamine,” and because that opinion “was in turn

 9 employed by the prosecution to prove one element of the crime,” the Court held that

10 the defendant had the right to challenge the basis of that opinion. Id. ¶ 30.

11 Ultimately, because she did not testify, the Court concluded that “her opinion could

12 not be effectively challenged,” such that the rights afforded by the Confrontation

13 Clause were violated. Id.

14        We perceive no distinction between Aragon and the case at hand. In both cases,

15 the State attempted to establish the identity of a controlled substance by calling an

16 analyst from the SFL to describe the results of gas chromatography or mass

17 spectrometry performed by another, non-testifying SFL analyst. In neither case did

18 the substitute analyst form an independent conclusion from the underlying facts or

19 data, but merely restated the hearsay opinion of the non-testifying analyst. We


                                              4
 1 therefore conclude that in this case, as in Aragon, Mr. Young’s testimony regarding

 2 Ms. Elenbaas’ report violated Defendant’s right of confrontation.

 3        In its memorandum in opposition, the State suggests that this Court should look

 4 to a different case, State v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1,

 5 rather than Aragon, to inform its analysis, because the Supreme Court’s mandate

 6 explicitly and exclusively refers to Bullcoming. [State’s MIO 1-2] However, we do

 7 not regard reference to Bullcoming in the mandate as an indication that the Supreme

 8 Court intended this Court to disregard Aragon, particularly in light of Aragon’s status

 9 as a companion case to Bullcoming.

10        The State asserts that this case should be distinguished from Aragon on grounds

11 that the actual report of Ms. Elenbaas was admitted in that case, whereas Mr. Young

12 merely testified to the contents of the report in this case. [State’s MIO 7, 12] To the

13 extent that any such distinction might be drawn, we regard it as immaterial. In

14 Aragon, the Court did not focus on the physical admission of the report of the non-

15 testifying expert. Rather, the Court addressed the impermissibility of presenting the

16 opinion of a non-testifying expert through the testimony of another expert. See

17 Aragon, 2010-NMSC-008, ¶¶ 26-33. The same problem is presented in this case.

18        The State also contends that this case might be distinguished from Aragon on

19 grounds that Mr. Young performed a “technical review” of Ms. Elenbaas’ report.


                                              5
 1 [State’s MIO 7-8, 11-12] The State suggests that this indicates that Mr. Young’s

 2 testimony reflected his own opinions, rather than merely relaying the opinion of Ms.

 3 Elenbaas. [State’s MIO 7-9, 11-12] However, the record provides no information

 4 about what this “technical review” entailed. [State’s AB 18] As a result, there is no

 5 basis for inferring that Mr. Young participated in the preparation of the report, or

 6 otherwise formed his own independent opinions. Cf. Aragon, 2010-NMSC-008,

 7 ¶¶ 29, 32-33 (concluding that expert testimony was improperly admitted where it was

 8 “not clear . . . whether he relied upon his own analysis of the underlying facts and

 9 data,” but a “fair reading” of the transcript indicated that the expert had simply

10 restated another, non-testifying expert’s opinion). In summary therefore, we conclude

11 that a violation of the Confrontation Clause occurred, such that reversal is in order.

12        Finally, because a ruling favorable to Defendant would preclude retrial, see

13 State v. Sanchez, 2000-NMSC-021, ¶ 30, 129 N.M. 284, 6 P.3d 486, we briefly

14 address the sufficiency of the evidence to support Defendant’s conviction. Because

15 the factual background has previously been described in our earlier memorandum

16 opinion, it is unnecessary to reiterate at length here. Defendant’s conviction stems

17 from his facilitation of a drug transaction, in the course of which two undercover

18 police officers purchased crack cocaine from a third party. For the reasons previously

19 described, we conclude that the testimony of the officers provides ample support for


                                             6
1 Defendant’s conviction, based on the theory of accessory liability.

2        In closing, we acknowledge that Defendant has also advanced a claim of

3 ineffective assistance of counsel. In light of our disposition with respect to the first

4 issue, it is unnecessary to reach Defendant’s claim.

5        For the reasons stated, we reverse and remand.

6        IT IS SO ORDERED.



7                                                _________________________________
8                                                JAMES J. WECHSLER, Judge

9 WE CONCUR:



10 ______________________________
11 CYNTHIA A. FRY, Chief Judge



12 ______________________________
13 CELIA FOY CASTILLO, Judge




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