                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-2233

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Brittny Nicole Ziegler,
                                        Appellant.

                                 Filed November 3, 2014
                                        Affirmed
                                      Larkin, Judge

                              Olmsted County District Court
                                File No. 55-CR-12-1066


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Bethany L. O’Neill, Assistant State Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.

                                     SYLLABUS

         Machine-generated data that do not contain the statements of human witnesses are

not testimonial statements that implicate a defendant’s right to confrontation under the

Sixth Amendment.
                                     OPINION

LARKIN, Judge

      Appellant challenges her convictions of criminal vehicular operation and reckless

driving. She argues that the admission of data collected from a sensing and diagnostic

module in her vehicle violated her right to confrontation under the Sixth Amendment of

the United States Constitution. Because the data are not testimonial statements within the

meaning of the Confrontation Clause, we affirm.

                                         FACTS

      Appellant Brittny Nicole Ziegler was driving eastbound on Highway 14, a two-

lane road in Olmsted County. A Ford Focus passed Ziegler’s vehicle and then passed

another vehicle in front of her. Ziegler believed that the Ford nearly hit an oncoming

vehicle and became upset with its driver. Ziegler decided to teach the Ford’s driver “a

little bit of a lesson.” Ziegler accelerated, tailgated the Ford, and then pulled into the

westbound lane to pass it. As she passed the Ford, Ziegler “flicked [the driver] off.” In

response, the driver of the Ford sped up to prevent Ziegler from passing and then slowed

down when Ziegler slowed down, preventing Ziegler from reentering the eastbound lane.

Ziegler finally accelerated enough to pull in front of the Ford. But when she returned to

the eastbound lane the cars collided and rolled into the ditch. Both of the vehicles’

occupants were injured. Respondent State of Minnesota charged Ziegler with three

counts of criminal vehicular operation and one count of reckless driving.

      The case was tried to a jury. At trial, the state called several witnesses, including

Sergeant Mark Inglett, a crash reconstructionist with the Minnesota State Patrol.


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Sergeant Inglett testified that he reconstructed the accident in this case relying, in part, on

data collected from a sensing and diagnostic module (SDM) in Ziegler’s vehicle.

Sergeant Inglett testified that an SDM is a type of “event data recorder” that collects and

records information such as vehicle speed, engine speed, and brake-switch activation.

Sergeant Inglett explained that the SDM is idle until it senses a change in velocity or an

impact, at which point it records data from other devices in the vehicle.

       Sergeant Inglett testified that another trooper, Sergeant Langford, plugged a device

that runs crash-data-retrieval software into Ziegler’s vehicle to copy or “image” the SDM

data. The software generated a report that contained data regarding Ziegler’s vehicle

speed and brake-switch activation, at one-second intervals. Sergeant Inglett testified that

the software generated the report containing the SDM data without input from Sergeant

Langford and that Sergeant Langford had no way to manipulate the report. Sergeant

Langford provided the report to Sergeant Inglett in a portable document format.

       Sergeant Langford did not testify at trial. Sergeant Inglett testified that he was not

present when Sergeant Langford downloaded the data and that he did not know if

Sergeant Langford followed the standard protocol when downloading the data. Sergeant

Inglett also testified that he was not present when the software generated the report and

that he could not independently verify whether the SDM was working properly on the

day of the accident.     Ziegler objected to Sergeant Inglett’s testimony regarding the

vehicle-speed and brake-switch-activation data on the grounds of “authenticity,

foundation, reliability and hearsay.” Ziegler also argued that Sergeant Inglett’s testimony

regarding the SDM data violated her right to confrontation under Crawford v.


                                              3
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The district court overruled Ziegler’s

objection and allowed Sergeant Inglett to testify “about the data that he relied on in

reaching his conclusions.”

       Based on the data that he received from the SDM, Sergeant Inglett testified that

Ziegler’s car was traveling at 71 miles per hour five seconds before the crash. Sergeant

Inglett further testified that Ziegler’s car was traveling at 47 miles per hour four seconds

before the crash, six miles per hour three seconds before the crash, three miles per hour

two seconds before the crash, and nine miles per hour one second before the crash.

Sergeant Inglett also testified that Ziegler’s brake switch was activated eight seconds

before the crash, seven seconds before the crash, six seconds before the crash, four

seconds before the crash, three seconds before the crash, and two seconds before the

crash. But the brake switch was deactivated five seconds before the crash and one second

before the crash.

       Sergeant Inglett concluded that “when [Ziegler] completed her pass [of the Ford],

she also applied the brakes and then that reduced speed,” leaving the driver of the Ford

“no choice but to go out onto the shoulder or rear-end [Ziegler’s] vehicle.” Sergeant

Inglett testified that the driver of the Ford drove onto the shoulder and then

overcorrected, which led to the collision.

       The jury found Ziegler guilty as charged. Ziegler moved the district court for a

new trial and to vacate the verdict. Ziegler argued that the district court erred by

allowing admission of the SDM data through Sergeant Inglett’s testimony because the

data were not authenticated, were not supported by foundation, were admitted without a


                                             4
Frye-Mack hearing, and because the data were hearsay statements. Ziegler also argued

that the testimony regarding the SDM data violated her rights under the Confrontation

Clause and Crawford. The district court denied Ziegler’s motion. The district court

adjudicated Ziegler guilty, stayed imposition of her sentence, and placed her on

probation. This appeal follows.

                                         ISSUE

      Are machine-generated data that do not contain the statements of human witnesses

testimonial statements that implicate a defendant’s right to confrontation under the Sixth

Amendment?

                                      ANALYSIS

      The Sixth Amendment guarantees a criminal defendant the right “to be confronted

with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause bars

“admission of testimonial statements of a witness who did not appear at trial unless [the

witness] was unavailable to testify, and the defendant had had a prior opportunity for

cross-examination.” Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365. “Whether the

admission of evidence violates a criminal defendant’s Confrontation Clause rights is a

question of law that [appellate courts] review de novo.” Hawes v. State, 826 N.W.2d

775, 786 (Minn. 2013).

      Ziegler’s sole argument on appeal is that the district court “violated [her] Sixth

Amendment right to confrontation by admitting the SDM data through the testimony of

Sergeant Inglett.”   Ziegler contends that the SDM data are testimonial statements,




                                            5
recognizing that this is an issue of first impression for Minnesota appellate courts. Our

analysis of that issue begins with Crawford.

          In Crawford, the Supreme Court explained that “the principal evil at which the

Confrontation Clause was directed was the civil-law mode of criminal procedure,” in

which “[j]ustices of the peace or other officials examined suspects and witnesses before

trial.”    541 U.S. at 50, 43, 124 S. Ct. at 1363, 1359.         “These examinations were

sometimes read in court in lieu of live testimony, a practice that occasioned frequent

demands by the prisoner to have his ‘accusers,’ i.e. the witnesses against him, brought

before him face to face.” Id. at 43, 124 S. Ct. at 1359 (quotation omitted). The Supreme

Court stated that “[t]he text of the Confrontation Clause reflects this focus. It applies to

‘witnesses’ against the accused—in other words, those who bear testimony.” Id. at 51,

124 S. Ct. at 1364 (quotations omitted).           Thus, the history and purpose of the

Confrontation Clause show that it provides a right to confront human beings who can be

brought into court and subjected to the “crucible of cross-examination.” Id. at 61, 124 S.

Ct. at 1370.

          Crawford describes the class of testimonial statements that are subject to the

Confrontation Clause as follows:

                       Various formulations of this core class of testimonial
                statements exist: ex parte in-court testimony or its functional
                equivalent—that is, material 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;
                extrajudicial statements contained in formalized testimonial
                materials, such as affidavits, depositions, prior testimony, or
                confessions; statements that were made under circumstances


                                               6
              which would lead an objective witness reasonably to believe
              that the statement would be available for use at a later trial.

Id. at 51-52, 124 S. Ct. at 1364 (citations and quotations omitted). We observe that these

examples all involve statements made by human beings.

      The United States Supreme Court has applied Crawford in cases in which

evidence regarding the results of forensic testing or analysis was introduced at trial

without testimony from the person who performed the testing or analysis. For example,

in Melendez-Diaz v. Massachusetts, the Supreme Court concluded that “three ‘certificates

of analysis’ showing the results of forensic analysis performed on seized substances”

were testimonial statements and that the analysts who tested the substances were

“witnesses” for Sixth Amendment purposes. 557 U.S. 305, 308, 310-11, 129 S. Ct. 2527,

2531, 2532 (2009). And in Bullcoming v. New Mexico, the Supreme Court concluded

that a forensic laboratory report certifying the defendant’s blood-alcohol concentration

was testimonial and that when the state elected to introduce the report, the analyst who

performed the testing “became a witness [the defendant] had the right to confront.” 131

S. Ct. 2705, 2709, 2716-17 (2011).

      Minnesota appellate courts have similarly held that reports prepared by individuals

regarding forensic analysis or testing are testimonial statements within the meaning of the

Sixth Amendment. In State v. Caulfield, the Minnesota Supreme Court concluded that a

report prepared by a Bureau of Criminal Apprehension (BCA) lab analyst that identified

a substance seized from the defendant as cocaine “was testimonial evidence under

Crawford,” when the state offered the report in lieu of calling the analyst as a witness at



                                            7
trial. 722 N.W.2d 304, 306-07, 309-10 (Minn. 2006). Similarly, in State v. Weaver, this

court held that a laboratory technician’s report regarding the results of carbon-monoxide

testing was testimonial, when the state offered testimony from another person regarding

the contents of the report instead of calling the lab tech as a witness at trial. 733 N.W.2d

793, 799-800 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007).

       Melendez-Diaz, Bullcoming, Caulfield, and Weaver do not determine the issue

presented in this case because in those cases, the objectionable evidence was not limited

to machine-generated data; it included out-of-court statements made by people regarding

the data. The Supreme Court in Bullcoming noted that:

              [The analyst’s] certification, however, reported more than a
              machine-generated number.

                     [He] certified that he received [the defendant’s] blood
              sample intact with the seal unbroken, that he checked to make
              sure that the forensic report number and the sample number
              corresponded, and that he performed on [the] sample a
              particular test, adhering to a precise protocol. . . . These
              representations, relating to past events and human actions not
              revealed in raw, machine-produced data, are meet for cross-
              examination.

131 S. Ct. at 2714 (citations and quotation omitted) (emphasis added). Justice Sotomayor

wrote separately, partly “to emphasize the limited reach of the Court’s opinion.” Id. at

2719 (Sotomayor, J., concurring). Justice Sotomayor noted that “this is not a case in

which the State introduced only machine-generated results, such as a printout from a gas

chromatograph. . . . Thus, we do not decide whether . . . a State could introduce

(assuming an adequate chain of custody foundation) raw data generated by a machine in

conjunction with the testimony of an expert witness.” Id. at 2722.


                                             8
       Although the United States Supreme Court has not specifically addressed whether

machine-generated data are testimonial statements, several federal circuit courts have

addressed the issue and concluded that such data are not testimonial statements within the

meaning of the Confrontation Clause. The most factually similar case to this case is

United States v. Lamons, which involved “raw billing data” that had been “recorded onto

[a telephone company’s] data reels” and transferred to a compact disc by means of a fully

automated process. 532 F.3d 1251, 1264 (11th Cir. 2008). A person used software to

decrypt the data and print it in spreadsheet form. Id. at 1262. At trial, both the compact

disc and spreadsheet were received as evidence. Id. at 1261. On appeal, the defendant

argued that the compact disc and spreadsheet “amounted to testimonial hearsay not

properly admissible under Crawford.” Id.

       The Eleventh Circuit considered whether the evidence qualified as “the kind of

statements that fall within the scope of the Confrontation Clause.” Id. at 1262-63. The

circuit court reasoned that “[i]n light of the constitutional text and the historical focus of

the Confrontation Clause, we are persuaded that the witnesses with whom the

Confrontation Clause is concerned are human witnesses, and that the evidence challenged

in this appeal does not contain the statements of human witnesses.” Id. at 1263. The

circuit court also reasoned that under the definition of “statement” in the federal hearsay

rule, “the statements in question are the statements of machines, not statements of

persons.”   Id. The circuit court concluded that “machine-generated statements” are

exempt “from the purview of the Confrontation Clause.” Id. at 1264.




                                              9
      The Eleventh Circuit based its decision in Lamons on two federal circuit court

decisions, United States v. Moon, 512 F.3d 359 (7th Cir. 2008), and United States v.

Washington, 498 F.3d 225 (4th Cir. 2007). 532 F.3d at 1263. In Moon, the Seventh

Circuit explained that “the Confrontation Clause does not forbid the use of raw data

produced by scientific instruments, though the interpretation of those data may be

testimonial.” 512 F.3d at 362. The circuit court noted that a chemist’s report admitted

into evidence had “two kinds of information: the readings taken from the instruments,

and [the chemist’s] conclusion that these readings mean that the tested substance was

cocaine” and that only “[t]he latter is testimonial as the Supreme Court used that word in

Crawford.” Id. at 361. In Washington, the Fourth Circuit concluded that “printed data”

generated from chromatograph machines operated by lab technicians were not

“statements of the lab technicians who operated the machines” and thus “not out-of-court

statements made by declarants that are subject to the Confrontation Clause.” 498 F.3d at

229-30.

      Like the circuit courts, we agree that machine-generated “statements” are exempt

from the purview of the Confrontation Clause because the Confrontation Clause is

concerned with the statements of human witnesses. Unlike the circuit courts, we find it

unnecessary to rely on the definition of a statement under the hearsay rules because the

constitutional text and the historical focus of the Confrontation Clause, as described in

Crawford, clearly establish that the Confrontation Clause is concerned with human

witnesses.   We therefore follow the approach of the Eleventh Circuit and consider




                                           10
whether “the evidence challenged in this appeal . . . contain[s] the statements of human

witnesses.” Lamons, 532 F.3d at 1263.

       In addressing that issue, the Eleventh Circuit reasoned that:

              [T]he relevant point is that no human intervened at the time
              the raw billing data was “stated” by the machine—that is,
              recorded onto [the telephone company’s] data reels. The
              process by which the data was extracted from the reels and
              placed onto compact CDs . . . was similarly fully automated.
              Finally, [the person] did not alter the underlying data on [the
              CD] when she created a printout of calls made to [a specific]
              telephone number . . . ; she merely utilized [software] in pre-
              programmed fashion to read the encrypted data on [the CD]
              and to format the data so as to indicate the relevant portion.

Id. at 1264. The circuit court noted that “[t]hese are not, for example, ‘computer data

compilations’ of records manually inputted into a computer by human declarants.” Id. at

1264 n.24.

       In its posttrial order regarding Ziegler’s Confrontation Clause argument, the

district court explained that:

                     An SDM module records event data which can be
              downloaded with a cable and the correct software. The data
              cannot be manipulated while it is being gathered and cannot
              be overwritten once it is recorded. Unlike[] the results of
              blood alcohol testing, DNA tests or tests of alleged controlled
              substances, the SDM data is not drawn out of some other
              piece of evidence by the application of certain tools and
              procedures by a scientist or technician with certain
              qualifications. It is simply read from the device by
              downloading it to a computer. The data is then passed on to
              someone else who reads and interprets it. In this case that
              person was Sgt. Inglett who was in court and subject to cross
              examination.




                                            11
Ziegler does not challenge the district court’s findings on appeal. Thus, the record shows

that just as in Lamons, no human intervened during the collection and recording of the

SDM data. And, although a person used software and a device to extract and print the

data from the SDM, that person did not and could not alter or manipulate the data.

       Nonetheless, Ziegler attempts to portray the SDM data as the statements of human

witnesses. Specifically, she asserts that the SDM data are testimonial statements of the

people who wrote the computer program that operates the SDM. We disagree. On this

point, the reasoning of the Eleventh Circuit is persuasive: “To be sure, there can be no

statements which are wholly machine-generated in the strictest sense; all machines were

designed and built by humans. But certain statements involve so little intervention by

humans in their generation as to leave no doubt that they are wholly machine-generated

for all practical purposes.”1 Id. at 1263 n.23.

       Like the circuit court in Lamons, we recognize that the evidence in this case

occupies “the far end of the spectrum.” Id. at 1264 n.25. Lamons notes that an example

of evidence at the other end of the spectrum is a judicial opinion, because it is a “wholly

human-generated statement, despite the fact that a machine—a word processor on a

computer—aided its production.” Id. The Lamons court also noted, and we agree, that

1
 Moreover, Crawford clearly described a testimonial statement as an ex parte statement
of a person that implicates another person in a crime. See 541 U.S. at 50-52, 124 S. Ct. at
1363-64 (stating that “the principal evil at which the Confrontation Clause was directed
was . . . [the] use of ex parte examinations as evidence against the accused,” and
describing testimonial statements as “ex parte in-court testimony or its functional
equivalent”). The people who wrote the computer program that operates the SDM did
not make a statement implicating Ziegler in the underlying offense; they simply wrote
computer code.


                                             12
“[t]he characterization of statements toward the middle of the spectrum, which includes a

statement that may have been generated through the contemporaneous lens of human

interpretation and analysis, poses a more difficult problem.” Id. But we easily conclude

that the SDM data in this case occupy the wholly machine-generated end of the spectrum.

The machine-generated SDM data in this case do not contain the statements of human

witnesses.

      Lastly, we address Ziegler’s argument that because the data evidence was an

important part of the case against her, it should not have been admitted unless its

reliability was meaningfully tested through cross-examination. Specifically, she contends

that she had a right to cross-examine Sergeant Langford regarding his retrieval of the data

from the SDM even though the state did not offer any statement by that officer at trial.2

Ziegler’s argument conflates evidentiary requirements based on authenticity and

foundation with the constitutional right of confrontation.3 The United States Supreme

Court recognized this distinction in Melendez-Diaz, explaining:

             [W]e 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. While . . . it is the obligation of the prosecution to
             establish the chain of custody, this does not mean that
             everyone who laid hands on the evidence must be called. . . .
             It is up to the prosecution to decide what steps in the chain of
             custody are so crucial as to require evidence; but what


2
  At oral argument, Ziegler’s attorney indicated that she was not aware of any report or
statement made by Sergeant Langford regarding his involvement in the investigation.
3
   Ziegler does not challenge the district court’s rulings regarding authenticity and
foundation in this appeal.

                                            13
              testimony is introduced must (if the defendant objects) be
              introduced live.

557 U.S. at 311 n.1, 129 S. Ct. at 2532 n.1 (citations and quotation omitted).

       The circuit-court opinions cited above also recognize the distinction between

objections based on authenticity and those based on the Confrontation Clause. “To say

that a wholly machine-generated statement is unreliable is to speak of mechanical error,

not mendacity. The best way to advance the truth-seeking process with respect to such

statements is not through cross-examination of the machine operator, but through the

process of authentication as provided for in [the federal rules of evidence].” Lamons, 532

F.3d at 1265; see also Washington, 498 F.3d at 231 (“Any concern[] about the reliability

of such machine-generated information is addressed through the process of authentication

and not by . . . Confrontation Clause analysis.”). In sum, Ziegler’s concerns regarding

the reliability of the data and the data-retrieval process are not resolved under the

Confrontation Clause.

       In conclusion, we hold that machine-generated data that do not contain the

statements of human witnesses are not testimonial statements within the meaning of the

Confrontation Clause. Thus, the SDM data in this case are not testimonial statements and

admission of the data through Sergeant Inglett’s testimony did not trigger Ziegler’s right

of confrontation under the Sixth Amendment. This case simply does not present a

situation in which a person’s ex parte statement was offered against a criminal defendant

at trial in lieu of testimony, which is the primary concern of the Confrontation Clause.

See Crawford, 541 U.S. at 50-52, 124 S. Ct. at 1363-64.



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                                    DECISION

      Because the machine-generated SDM data in this case are not testimonial

statements within the meaning of the Confrontation Clause, the admission of that data

through a witness’s trial testimony did not violate Ziegler’s right to confrontation under

the Sixth Amendment.

      Affirmed.




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