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                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 12:12:29 2012.07.18

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-066

Filing Date: May 31, 2012

Docket No. 31,146

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

MARIO MONCAYO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM

for Appellee

Eric D. Dixon
Portales, NM

for Appellant

                                       OPINION

CASTILLO, Chief Judge.

{1}     Defendant appeals his convictions for possession of a controlled substance with
intent to distribute contrary to NMSA 1978, Section 30-31-20(A)(3) (2006), and tampering
with evidence contrary to NMSA 1978, Section 30-22-5 (2003), arguing that his
Confrontation Clause rights were violated when a chemical forensic report was admitted into
evidence based upon testimony from an analyst who had not prepared the report. Defendant
further argues that the court erred in allowing the trial to go forward after Defendant
exhibited high blood pressure on the day of trial. For the reasons that follow, we reverse
Defendant’s convictions.

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BACKGROUND

{2}     On July 27, 2007, police officers executed a search warrant of a residence in Clovis.
Officers found Defendant in the front yard of the residence next to a vehicle with an open
hood. Defendant was holding a baggie, which he dropped into the engine compartment as
an officer approached. One officer took Defendant into custody and subsequently located
the dropped baggie. The substance in the baggie was sent to the Department of Public Safety
for forensic testing and was tested by analyst Mandy Bergeron. Bergeron completed a
laboratory report finding that the substance contained cocaine. Defendant was charged with
possession of a controlled substance with intent to distribute; tampering with evidence; and
resisting, evading, or obstructing arrest.

{3}     Defendant was initially brought to trial on September 26, 2008. The State called
Fidely Nathanson of the New Mexico State Crime Laboratory to testify regarding the
laboratory report prepared by Bergeron. The State explained that Bergeron was still
employed with the Laboratory in Santa Fe, but she had chosen to remain in Santa Fe to
interview a job applicant on the day of trial. Defense counsel objected, citing the
Confrontation Clause, and stating that “[u]nder the [Sixth] and [Fourteenth] Amendments
as well as the [s]tate constitution, my client is being denied the opportunity to confront the
witness regarding the chain of custody and what they did to preserve [the evidence]. . . .
[The proposed testimony] denies me and my client the right to confront witnesses against
him.” The district court disagreed, determined that the report was a public record, and
allowed Nathanson to testify about the report. The jury acquitted Defendant of resisting,
evading, or obstructing arrest and dead-locked on the remaining two charges.

{4}     Defendant was retried for possession of a controlled substance with intent to
distribute and tampering with evidence in a jury trial on May 11, 2009. This time, the State
called Nick Beninato, another analyst from the Crime Laboratory who had not personally
tested the substance in question or completed the report. Defense counsel renewed his
objection, stating that allowing Beninato to testify “violates my client’s right to confront
witnesses against him.” The district court again admitted the laboratory report and the
testimony of Beninato, concluding that the report was “non-testimonial.” The jury found
Defendant guilty on both counts, and this appeal followed.

DISCUSSION

Confrontation Clause

{5}      Defendant argues that his confrontation rights were violated when the district court
admitted the laboratory report through Beninato, a witness who had not performed the
testing in question. As a preliminary matter, the State argues that this issue was not properly
preserved. Claiming that Defendant focused his arguments on the hearsay rule and
authentication and merely made reference to the Confrontation Clause, the State contends
that the reference was not “sufficiently specific to alert the [district] court to the claimed

                                              2
constitutional errors.” We disagree. In order to preserve an issue for appeal, “it must appear
that a ruling or decision by the district court was fairly invoked[.]” Rule 12-216(A) NMRA.
The primary purposes of the preservation requirements are: (1) to specifically alert the
district court to a claim of error so that the error may be corrected at that time, (2) to allow
the opposing party adequate opportunity to respond to a claim of error, and (3) to create a
sufficient record to allow this Court to make an informed decision regarding the contested
issue. Gerke v. Romero, 2010-NMCA-060, ¶ 18, 148 N.M. 367, 237 P.3d 111. “[W]e have
stated that our rule disregards form and relies upon substance, and merely requires that a
question be fairly presented to the [district] court and a ruling invoked.” State v. Balderama,
2004-NMSC-008, ¶ 19, 135 N.M. 329, 88 P.3d 845 (internal quotation marks and citation
omitted).

{6}      We now turn to the record. At trial, both the State and Defendant engaged in
arguments regarding the consequences of admitting the report under the Confrontation
Clause, thus alerting the court to Defendant’s theory and relevant law. Defendant argued the
admission of the report would violate his “right to confront witnesses against him,” and that
he needed “the person here that did the report.” In response to Defendant’s contention, the
district court allowed admission of the report and Beninato’s testimony, concluding that they
presented “no issue under the [C]onfrontation [C]lause because the report is non-testimonial
and satisfies the test of Ohio v. Roberts.” 448 U.S. 56 (1980), overruled on other grounds
as recognized by People v. Peck, 674 N.E.2d 440, 447 (Ill. App. Ct. 1996). The fact that
Defendant made additional, or perhaps even more extensive arguments under another theory
does not mean that his Confrontation Clause arguments were not preserved. Based on the
record, we conclude that the district court was alerted to the argument and ruled on it, thus
satisfying the preservation requirement. State v. Skippings, 2011-NMSC-021, ¶ 27, 150
N.M. 216, 258 P.3d 1008; Balderama, 2004-NMSC-008, ¶ 19.

{7}     We now address the merits of Defendant’s argument that the admission of the report
violated Defendant’s confrontation rights. Questions of admissibility under the
Confrontation Clause are questions of law that this Court reviews de novo. See State v.
Zamarripa, 2009-NMSC-001, ¶ 22, 145 N.M. 402, 199 P.3d 846.

{8}     The State acknowledges that because the laboratory report was admitted, “it appears
there may have been a violation of [D]efendant’s right of confrontation.” We agree. Our
Supreme Court has determined that the admission of a chemical report without the testimony
of the preparing analyst violated the defendant’s confrontation rights, because “[t]he
determinations of whether a substance is narcotic and its degree of purity . . . must be
classified as ‘opinion,’ rooted in the assessment of one who has specialized knowledge and
skill.” State v. Aragon, 2010-NMSC-008, ¶ 30, 147 N.M. 474, 225 P.3d 1280, overruled on
other grounds by State v. Tollardo, 2012-NMSC-008, ___ N.M. ___, ___ P.3d ___.
Thereafter, the United States Supreme Court in Bullcoming v. New Mexico, 131 S. Ct. 2705
(2011), implicitly rejected the distinction between chemical analyses and blood alcohol tests
and held that the testimony of a substitute expert about a blood alcohol analysis report
conducted by another analyst violated the defendant’s confrontation rights. The United

                                               3
States Supreme Court concluded that such “surrogate” testimonial evidence offends the
accused’s “right . . . to be confronted with the analyst who made the certification,” Id. at
2710, and “may not be introduced against the accused at trial unless the witness who made
the statement is unavailable and the accused has had a prior opportunity to confront that
witness.” Id. at 2713. The Court stated emphatically that the Sixth Amendment “does not
tolerate dispensing with confrontation simply because the court believes that questioning one
witness about another’s testimonial statements provides a fair enough opportunity for cross-
examination.” Id. at 2716. The Court concluded that the introduction of testimony through
a substitute or surrogate witness attesting to the original analyst’s report violated a
defendant’s right to confrontation. See id.

{9}     Here, it is uncontroverted that Defendant had no opportunity to cross-examine
Bergeron, the creator of the report. Additionally, the State did not argue that Bergeron was
unavailable for trial. In the absence of these requirements, we hold that admission of the
report violated Defendant’s right to confrontation. See id.; Aragon, 2010-NMSC-008, ¶¶ 8,
30 (holding that the admission of a testimonial chemical forensic report that identified the
chemical makeup of a seized substance and that was prepared by a non-testifying analyst
violated the defendant’s confrontation rights).

Harmless Error

{10} In anticipation of this Court’s holding that the report’s admission was improper, the
State offers two additional ways that it argues it properly provided evidence that the
substance in evidence was cocaine: (1) the testimony of Beninato, the witness from the State
Crime Lab who testified to the test results; and (2) the testimony of Lieutenant Jay Longley,
an officer at the scene when Defendant was arrested. Therefore, the State argues that the
admission of the laboratory report was cumulative and, thus, harmless error. We first
address the State’s argument with regard to Beninato’s testimony.

{11} In determining whether admission of the report was harmless, the State asks us to
hold that the testimony of Beninato was properly admitted as Beninato’s independent
opinion as to the substance in question, relying on Justice Sotomayor’s concurrence in
Bullcoming. 131 S. Ct. at 2722 (Sotomayor, J., concurring) (“[T]his is not a case in which
an expert witness was asked for his independent opinion about underlying testimonial reports
that were not themselves admitted into evidence.”). There is a distinction between an expert
witness parroting results of a non-testifying analyst’s report, and an expert testifying
regarding his or her independent opinion based upon a non-testifying analyst’s report. Our
Supreme Court in Aragon held that had the testifying expert testified unequivocally that the
opinion was his own and formed based on underlying facts and data reasonably relied upon
in the field, the defendant could have cross-examined the expert based on those opinions.
Aragon, 2010-NMSC-008, ¶ 33. In State v. Jaramillo, this Court interpreted this language
to provide a narrow exception: an expert can testify about his or her own opinion based on
facts and data contained in a non-testifying expert’s report, but only if the testifying expert
unequivocally testifies that it was his opinion, not the opinion of the non-testifying witness,

                                              4
and if the testifying expert testifies that the facts and data are the types relied upon by
experts in the field. 2012-NMCA-029, ¶ 20, ___ N.M. ___, 272 P.3d 682; see State v.
Gonzales, 2012-NMCA-034, ¶¶ 27-28, ___ N.M. ___, 274 P.3d 151 (reversing the exclusion
of a witness who did not prepare the autopsy report and remanding the case with instructions
to evaluate whether expert should be allowed to testify about the report).

{12} Therefore, Justice Sotomayor’s concurrence in Bullcoming, as well as Aragon,
Jaramillo, and Gonzales, all recognize that, in certain circumstances, an expert may testify
to his or her independent opinion based upon a non-testifying analyst’s report. However, the
case before us does not comply with the requirement that the testifying expert express an
independent opinion. Aragon, 2010-NMSC-008, ¶ 33; Jaramillo, 2012-NMCA-029, ¶ 20.
In response to the State’s questions, Beninato testified about whether Bergeron’s report
contained a result, whether Bergeron had reached a conclusion about the substance in
question, what that conclusion was, and whether Beninato agreed with Bergeron’s
conclusion. Beninato never testified unequivocally that it was his opinion, and not the
opinion of Bergeron. To the contrary, on cross- examination, Defendant questioned
Beninato, asking, “you didn’t find anything, you’re telling the jury what . . . Bergeron
apparently found . . . you’re testifying is to what you believe her . . . .” Beninato interrupted,
answering, “what she found, correct, at the laboratory.” Because this testimony does not
meet the threshold requirement that the expert unequivocally testify that he or she is
expressing an independent opinion, we conclude that the admission of Beninato’s testimony
was also error. Aragon, 2010-NMSC-008, ¶ 33; Jaramillo, 2012-NMCA-029, ¶ 20.

{13} Although we have determined that the admission of the report and Beninato’s
testimony violated Defendant’s confrontation rights, we briefly address the State’s argument
that Rules 11-702 through -705 NMRA, evidence rules pertaining to testimony of expert
witnesses, allow an expert witness to rely on facts or data that need not be admissible in
offering his or her expert opinion. While the rules of evidence do allow an expert to rely on
otherwise inadmissible facts and data in offering an opinion, we only reach the question of
whether the testimony is admissible under the rules of evidence after it has been established
that the testimony is not barred by the Confrontation Clause. Aragon, 2010-NMSC-008, ¶
6. It is well-established that where the Confrontation Clause bars use of a statement, the
evidence rules cannot make the statement admissible. Jaramillo, 2012-NMCA-029, ¶ 19.

{14} In addition to Beninato’s expert testimony discussed above, the State also argues that
the improper admission of the laboratory report was cumulative because Lieutenant
Longley’s testimony independently proved that the substance in question was cocaine.
Lieutenant Longley testified to his expertise working several hundred drug cases over
twenty-seven years, and testified that he field tested the substance and recognized the
amount of substance found on Defendant as an amount intended for sale. A close review of
the evidence, however, reveals that Lieutenant Longley did not testify to the results of that
field test. Consequently, there was no evidence that the substance Defendant possessed was
actually cocaine.


                                                5
{15} “When a constitutional trial error has been committed, the burden is on the State to
demonstrate [that] the error is harmless beyond a reasonable doubt.” State v. Romero, 2006-
NMCA-045, ¶ 70, 139 N.M. 386, 133 P.3d 842 (internal quotation marks and citation
omitted), aff’d, 2007-NMSC-013, 141 N.M. 403, 156 P.3d 694. A reviewing court should
only conclude that a constitutional error is harmless when there is no reasonable probability
that it affected the verdict. State v. Barr, 2009-NMSC-024, ¶ 53, 146 N.M. 301, 210 P.3d
198, overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37.

{16} We now apply this standard to our case. Recently, our Supreme Court reexamined
our harmless error jurisprudence in Tollardo, 2012-NMSC-008. Tollardo left intact the Barr
analysis as to constitutional and non-constitutional standards for harmless error analysis,
Tollardo, 2012-NMSC-008, ¶ 36, but it overruled the Moore three-part factor test previously
employed in our harmless error case law. Tollardo, 2012-NMSC-008, ¶ 38. “[T]he Moore
factors misstate the law and distort the proper focus of harmless error review from whether
the verdict was impacted by the error to whether, in spite of the error, the right result was
reached.” Tollardo, 2012-NMSC-008, ¶ 42 (internal quotation marks and citation omitted).
According to the Tollardo Court, “a review of the particular circumstances in each case,
rather than mechanical application of a multi-factor test, must guide the inquiry into whether
a given trial error requires reversal.” Id. ¶ 2. The Court instructed that reviewing courts
should “evaluate all of the circumstances surrounding the error,” including “an examination
of the error itself, which . . . could include an examination of the source of the error and the
emphasis placed upon the error.” Id. ¶¶ 43, 57. The Court also indicated that evidence of
a defendant’s guilt separate from the error cannot be the “singular focus” of a harmless error
analysis, but that this evidence “may often be relevant, even necessary, for a court to
consider, since it will provide context” for understanding the role the error may have played
in the trial proceedings. Id. ¶ 43.

{17} Following this direction, we conclude that the admission of the report was not
harmless because without its admission and the testimony based on it, there was no evidence
that the substance found on Defendant was cocaine. Without this evidence, there was
insufficient evidence to support Defendant’s convictions. Although Tollardo directs that we
consider other factors such as the error itself, we see no need to continue the analysis.
Without evidence that the substance in question was cocaine, there is nothing to support the
State’s case against Defendant.

{18} Because we reverse Defendant’s conviction, we need not reach Defendant’s second
issue of whether the district court erred in allowing the trial to go forward despite
Defendant’s high blood pressure.

CONCLUSION

{19} We reverse Defendant’s convictions and remand this case to the district court for
proceedings consistent with this Opinion.


                                               6
{20}   IT IS SO ORDERED.

                                         ____________________________________
                                         CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Moncayo, Docket No. 31,146

APPEAL AND ERROR
Harmless Error
Preservation of Issues for Appeal

CONSTITUTIONAL LAW
Right to Confrontation

CRIMINAL LAW
Controlled Substances
Tampering

CRIMINAL PROCEDURE
Expert Witness
Right to Confrontation

EVIDENCE
Drug Testing
Expert Witness




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