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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO.33,928

 5 RUDY VALLEJOS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Mary Barket, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.

18   {1}    Defendant appeals his conviction for felony driving while under the influence

19 (DWI). We issued a notice of proposed disposition proposing to affirm, and Defendant
 1 has responded with a motion to amend the docketing statement and a memorandum

 2 in opposition. We have carefully considered the arguments raised by Defendant but

 3 remain convinced that affirmance is the appropriate result in this case. Therefore, for

 4 the reasons stated in this Opinion and in the notice of proposed disposition, we deny

 5 the motion to amend the docketing statement and affirm Defendant’s conviction.

 6 Motion to Amend

 7   {2}   Defendant contends the district court erred in admitting into evidence a lab

 8 report containing evidence of Defendant’s blood-alcohol content (BAC). In his

 9 docketing statement, Defendant objected to the district court’s admission of the lab

10 report on foundational grounds and cited no Confrontation Clause cases as supporting

11 authority for his argument against admission of the report. [DS 5-6] We proposed to

12 reject Defendant’s lack-of-foundation argument and to affirm the district court’s

13 admission of the evidence. Now Defendant moves to amend his docketing statement

14 to include a Confrontation Clause argument. This argument is based on the fact that

15 a lab analyst conducted the test of Defendant’s blood and prepared a draft report

16 containing the results of the testing, but the report was reviewed and finalized by a lab

17 supervisor who did not testify at trial. Defendant contends the report should not have

18 been admitted into evidence because the supervisor was not available for cross-

19 examination. For purposes of this Opinion, we accept trial counsel’s belief that she

                                               2
 1 preserved this issue at trial by referring to the Confrontation Clause during her

 2 argument, although counsel is not entirely certain on that point. [MIO 5]

 3   {3}   Defendant’s argument is not viable because, for Confrontation Clause purposes,

 4 the testimonial evidence that was admitted at trial was not the report itself but the

 5 information contained in the report—Defendant’s BAC results as revealed by the

 6 testing performed by the analyst. See State v. Huettl, 2013-NMCA-038, ¶ 37, 305 P.3d

 7 956 (pointing out that testimony that is based upon a non-testifying analyst’s

 8 conclusions and analysis is “clearly impermissible” under the Confrontation Clause);

 9 see also Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2715-16 (2011)

10 (holding that, to satisfy Confrontation Clause, the analyst who performed the blood-

11 alcohol analysis must testify and be available for cross-examination concerning the

12 testing process employed by the analyst). In fact, if the supervisor had been offered

13 as a witness in this case, it would have been proper to reject his testimony on

14 Confrontation Clause grounds, because there is no indication that he independently

15 tested Defendant’s blood or arrived at independent conclusions that were based on raw

16 data generated by the analyst. See Bullcoming, ___ U.S. ___, 131 S. Ct. at 2716

17 (rejecting the New Mexico Supreme Court’s holding that a lab supervisor could

18 constitutionally testify as to the results of tests performed by a different analyst and

19 noting that the state did not assert that the supervisor had any independent opinion

                                              3
 1 about the defendant’s BAC); Huettl, 2013-NMCA-038, ¶¶ 36-37 (holding that, while

 2 an expert may testify as to her own opinion based on raw data generated by a non-

 3 testifying analyst, the expert may not testify about the contents of a report that is based

 4 on testing performed by a non-testifying analyst).

 5   {4}   In this case the analyst who performed the testing of Defendant’s blood

 6 appeared as a witness and was available for cross-examination. The analyst testified

 7 that he broke the seal on the blood container and performed the test and then prepared

 8 a report showing the results of the test. [MIO 5-6] That report was then reviewed by

 9 the supervisor, who finalized the report. [Id.] It is clear that, according to the

10 information contained in the docketing statement and motion to amend, the supervisor

11 performed no independent testing of the blood and reached no independent

12 conclusions concerning the results of the testing. For that reason, the Confrontation

13 Clause did not require that the supervisor testify in order to make the report admissible

14 at trial; instead, the analyst was properly allowed to testify about the substantive

15 contents of the report, including the tests he performed and the results of those tests.

16   {5}   We note that Defendant suggests that the lab report may have constituted a

17 “separate accusation” by the supervisor because it may have “reflected his review of

18 the data.” [MIO 9] However, there is nothing in the docketing statement or in the tape

19 log from the trial that indicates this was the case. [DS passim; RP 118-19] As we

20 pointed out above and in the notice of proposed disposition, the analyst testified that

                                                4
 1 he performed the testing and prepared the report setting out the results of the test,

 2 which was then reviewed by the supervisor. We have been provided no evidentiary

 3 support for an assertion that the supervisor performed any independent analysis at all,

 4 either of Defendant’s blood or of the results of the testing of that blood. In sum, the

 5 report signed by the supervisor merely reflected his review of the analyst’s draft

 6 report, not an independent accusation of Defendant and was therefore not subject to

 7 the restrictions of the Confrontation Clause. Cf. Bullcoming, ___ U.S. ___, 131 S. Ct.

 8 at 2716; Huettl, 2013-NMCA-038, ¶¶ 36-37.

 9   {6}   Since the issue Defendant attempts to raise is not viable, we deny his motion

10 to amend the docketing statement. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118

11 N.M. 58, 878 P.2d 1007 (denying the defendant’s motion to amend the docketing

12 statement because the argument offered in support of the motion was not viable).

13 Memorandum in Opposition

14   {7}   Defendant again argues that the State failed to lay a sufficient evidentiary

15 foundation for the admission of the lab report. As we discussed in the notice, the lab

16 report is considered a business record, and the analyst who created the substance of

17 the report was qualified to authenticate the report for purposes of the Rules of

18 Evidence. See State v. Nez, 2010-NMCA-092, ¶¶ 3, 14, 148 N.M. 914, 242 P.3d 481;

19 Roark v. Farmers Grp., Inc., 2007-NMCA-074, ¶ 24, 142 N.M. 59, 162 P.3d 896. We

20 therefore affirm on this issue.

                                              5
 1   {8}   Defendant also repeats his argument that the analyst should not have been

 2 allowed to testify because he was not disclosed as a witness until eight days before

 3 trial. Defendant maintains that trial counsel did not have an adequate opportunity to

 4 research the analyst’s background or investigate his assertions about the testing he

 5 performed or the test results because the district court’s cure for the late disclosure

 6 was simply to allow counsel to interview the analyst briefly before he testified.

 7 Defendant acknowledges that a district court’s ruling concerning late disclosure of

 8 evidence is reviewed only for an abuse of discretion. State v. Duarte, 2007-NMCA-

 9 012, ¶ 14, 140 N.M. 930, 149 P.3d 1027. No such abuse has been demonstrated here.

10 Defendant can offer only vague assertions concerning his inability to investigate the

11 analyst’s background and the testing methods employed by the analyst. These

12 assertions, lacking any concrete information about what Defendant believed he could

13 discover if he had more time to investigate the analyst, are insufficient to establish that

14 Defendant was prejudiced by the late disclosure of the analyst as a witness. We affirm

15 the district court’s decision allowing the analyst to testify at trial.

16   {9}   Defendant’s final argument repeats his claim that he received ineffective

17 assistance of counsel because trial counsel successfully excluded evidence of the

18 existence of Defendant’s intoxilyzer device from the trial and advised Defendant not

19 to testify. In addition, Defendant argues that if trial counsel did not preserve for appeal



                                                6
 1 the Confrontation Clause issue discussed above, then that failure constituted

 2 ineffective assistance.

 3   {10}   As to the last claim, we have assumed that the Confrontation Clause argument

 4 was preserved and have found it to be without merit. Therefore, even if it was not

 5 preserved, Defendant was not prejudiced by trial counsel’s purported failure to raise

 6 the meritless argument, and as a result did not receive ineffective assistance from his

 7 attorney. See State v. Chandler, 1995-NMCA-033, ¶ 35, 119 N.M. 727, 895 P.2d 249

 8 (stating that it is not ineffective assistance of counsel to fail to make a motion that

 9 lacks merit).

10   {11}   With respect to the intoxilyzer argument, an obvious tactical reason exists for

11 trial counsel’s actions—preventing the jury from learning that Defendant had a prior

12 conviction or convictions for DWI. Therefore, these actions, without more, do not

13 establish ineffectiveness. See State v. Ortega, 2014-NMSC-017, ¶ 55, 327 P.3d 1076

14 (holding that a prima facie case of ineffective assistance of counsel does not exist

15 where there is a plausible, rational strategy explaining the attorney’s actions).

16   {12}   Finally, Defendant recognizes that his claim concerning trial counsel’s advice

17 that he not testify depends on facts that are not of record. [MIO 18] He asks that the

18 case be remanded for an evidentiary hearing or that we note that he may raise this

19 issue in post-conviction proceedings. We decline the request to remand because

20 Defendant has not established a prima facie showing of ineffective assistance; again,

                                               7
 1 a plausible trial strategy (preventing Defendant from possibly being cross-examined

 2 about his prior DWI convictions) existed for trial counsel’s actions. See id.; State v.

 3 Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517 (holding that a case will be

 4 remanded for an evidentiary hearing only where a prima facie showing of ineffective

 5 assistance has been made on appeal). Defendant remains free to attempt to raise this

 6 issue in any post-conviction proceedings he may be eligible to file. See Arrendondo,

 7 2012-NMSC-013, ¶ 44 (raising ineffective assistance claim on direct appeal does not

 8 preclude defendant from subsequently pursuing habeas corpus action where more

 9 facts can be developed).

10   {13}   Based on the foregoing, we affirm Defendant’s felony DWI conviction.

11   {14}   IT IS SO ORDERED.


12                                         __________________________________
13                                         LINDA M. VANZI, Judge



14 WE CONCUR:



15 _________________________________
16 MICHAEL E. VIGIL, Chief Judge



17 _________________________________
18 JAMES J. WECHSLER, Judge

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