                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'04- 17:29:09 2013.07.31
Certiorari Denied, June 25, 2013, No. 34,112

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-081

Filing Date: March 19, 2013

Docket No. 31,265

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

VERNARD SMITH,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

KENNEDY, Chief Judge.

{1}     This case requires us to determine whether the district court erred in permitting an
analyst from the State’s Scientific Laboratory Division (SLD) to testify at trial via a video
conference as to the conduct and results of a blood test. We hold that the district court did
not establish the requisite necessity for allowing video testimony in lieu of live testimony
and, as a result, Defendant’s rights under the Sixth Amendment to the United States

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Constitution were violated by the video conference testimony. The error was not harmless,
and we reverse Defendant’s conviction.

I.     BACKGROUND

{2}     Vernard Smith (Defendant) was arrested for driving under the influence. His blood
was tested for alcohol. An analyst from the SLD tested the blood. At Defendant’s trial, the
analyst testified as to the blood test results via two-way video conference over Defendant’s
objection. The district court found that, to appear in person, the analyst would have to drive
several hours, resulting in the SLD being shorthanded, and the analyst inconvenienced in her
work. Because it perceived no difference in appearing via two-way video conference and
in person, the district court determined that it would permit the testimony via video
conference and denied Defendant’s objection. The jury convicted Defendant of driving
while under the influence. Defendant and the State dispute whether there was other evidence
of impairment or intoxication other than the .07 percent test result and, therefore, whether
any potential error was harmless.

II.    DISCUSSION

{3}     We review whether Defendant’s right to confront and cross-examine the witness was
violated by the district court de novo. State v. Chung, 2012-NMCA-049, ¶ 10, 290 P.3d 269,
cert. granted, 2012-NMCERT-005, 294 P.3d 446.1 Defendant also raises issues of
prosecutorial misconduct and irrelevant evidence, but as we reverse based on the
Confrontation Clause, we do not need to address his other arguments.

A.     Two-Way Video Conference Testimony Violates the Confrontation Clause
       Absent a Showing of Necessity

{4}     The Confrontation Clause is found in the Sixth Amendment to the United States
Constitution and made applicable to the states through the Fourteenth Amendment, as well
as in Article II, Section 14 of the New Mexico Constitution. Both constitutional provisions
guarantee that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const. amend VI.

{5}    Case law on video testimony recognizes both the difference between virtual and real
testimony and the requirement of substantial necessity when abrogating the right to face-to-


       1
        Although the State asserts that Chung is not entitled to precedential value because
our Supreme Court has granted certiorari, a formal Court of Appeals opinion has controlling
authority in this Court, even when our Supreme Court has granted certiorari in the case.
Arco Materials, Inc. v. State, Taxation & Revenue Dep’t, 118 N.M. 12, 14, 878 P.2d 330,
332 (Ct. App. 1994), rev’d on other grounds by Blaze Constr. Co. v. Taxation & Revenue
Dep’t, 118 N.M. 647, 884 P.2d 803 (1994).

                                              2
face confrontation. Generally, “the Confrontation Clause guarantees the defendant a
face-to-face meeting with witnesses appearing before the trier of fact.” Maryland v. Craig,
497 U.S. 836, 844 (1990) (internal quotation marks and citation omitted). Confrontation
requires that the witness be presented in court in such a way as to fulfill the elements of the
Confrontation Clause and, if there is to be a departure from that standard, any variance be
necessary to further an important public policy. The necessity must be supported by specific
findings by the trial court. Coy v. Iowa, 487 U.S. 1012, 1021 (1988).

{6}     The right to confrontation is not designed just for the criminal defendant, but for the
integrity of a trial.

        The combined effect of these elements of confrontation—physical presence,
        oath, cross-examination, and observation of demeanor by the trier of
        fact—serves the purposes of the Confrontation Clause by ensuring that
        evidence admitted against an accused is reliable and subject to the rigorous
        adversarial testing that is the norm of Anglo-American criminal proceedings.

Craig, 497 U.S. at 846.2

{7}       Although the State maintains that “[l]ive, two-way video-conferencing is identical
in all critical respects to live, in-court testimony and thus satisfies the Confrontation Clause,”
we disagree. Virtual presence created by television falls short of physical presence in
satisfying the elements of confrontation. Harrell v. State, 709 So. 2d. 1364, 1368-69 (Fla.
1998) (declining to find live satellite testimony to be equivalent to live, face-to-face
testimony). Virtual confrontations fall short of constitutional confrontations in that “they
do not provide the same truth-inducing effect.” People v. Buie, 775 N.W.2d 817, 825 (Mich.
Ct. App. 2009); see Craig, 497 U.S. at 857. Courts applying Craig to video testimony are
less concerned with differentiating between one- or two-way video than they are in strictly
applying a necessity test to any attempt to supplant live testimony. United States v.
Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (stating that “two-way systems share with
one-way systems a trait that by itself justifies the application of Craig: the confrontations
they create are virtual, and not real in the sense that a face-to-face confrontation is real”
(internal quotation marks omitted)). Contrary to the State’s contention, video testimony does
not itself “satisfy” the requirements of the Sixth Amendment.

{8}    The State contends that Craig fully resolves this case, but we disagree. Craig
allowed the one-way video testimony of child victims of abuse and stated the method


        2
          Historically, those proceedings permit “the accused . . . an opportunity, not only of
testing the recollection and sifting the conscience of the witness, but of compelling him to
stand face[-]to[-]face with the jury in order that they may . . . judge [him] by his demeanor
. . . and . . . manner . . . whether he is worthy of belief.” Mattox v. United States, 156 U.S.
237, 242-43 (1895).

                                                3
protected several elements of the Confrontation Clause, such as the oath, cross-examination,
and the trier of fact’s ability to view the witness’s demeanor, while only lacking the
witness’s ability to see the defendant. 497 U.S. at 852. In Craig, the United States Supreme
Court established an allowable exception to the presence requirement by stating that “our
precedents confirm that a defendant’s right to confront accusatory witnesses may be satisfied
absent a physical, face-to-face confrontation at trial only where denial of such confrontation
is necessary to further an important public policy and only where the reliability of the
testimony is otherwise assured.” 497 U.S. at 850. In Craig, the important public policy was
rooted in the necessity of protecting the child victims from further physical or psychological
harm and, in light of that interest, the Supreme Court stated that one-way television
testimony was acceptable. Id. at 852. We interpret Craig to require a particularized showing
of necessity in the service of an important public policy before a court may approve an
exception to physical presence. 497 U.S. at 850 (explaining that video testimony may
overcome the requirement of physical confrontation only when it is “necessary to further an
important public policy”). The question is whether the district court properly allowed the
video testimony following an adequate showing of necessity.

{9}     We have declined to define necessity as including convenience. Chung, 2012-
NMCA-049, ¶ 11 (disallowing video testimony for convenience as a Confrontation Clause
violation); State v. Almanza, 2007-NMCA-073, ¶ 12, 141 N.M. 751, 160 P.3d 932 (stating
that the use of telephonic testimony violates the Confrontation Clause when used for mere
convenience). In Almanza, we held that the Sixth Amendment’s right of confrontation
requires face-to-face confrontation between the witness and the defendant with any
exceptions to the rule being “narrowly tailored” and allowed in “only those situations where
the exception is necessary to further an important public policy.” 2007-NMCA-073, ¶ 8
(internal quotation marks and citation omitted). Courts define “important public policy”
narrowly in cases such as this. See Commonwealth v. Atkinson, 2009 PA Super 239, ¶ 12,
987 A.2d 743 (Pa. Super. Ct. 2009) (stating that, “[i]n addition to child witness cases, there
appear to be two situations in which courts have considered the use of video testimony for
adult witnesses: when a witness is too ill to travel and when a witness is located outside of
the United States”). Atkinson held that the efficiency and security concerns upon which the
government based its attempt to have a prisoner testify by video demonstrated insufficient
necessity for an exception to the defendant’s confrontation rights. Id. ¶ 17.

{10} Using a similarly high standard in Almanza, we held that the witness’s convenience
or the convenience of his employer are not situations that demonstrate necessity. Almanza,
2007-NMCA-073, ¶ 12. We concluded that a chemist’s busy schedule and inconvenience
to him or his laboratory caused by traveling to testify did not rise to a consideration of
necessity and, thus, did “not satisfy the exceptions to the Confrontation Clause.” Id. ¶ 12;
see also Chung, 2012-NMCA-049, ¶ 11. A prosecutor’s purpose of using video
conferencing to expedite a hearing is similarly insufficient. Atkinson, 2009 PA Super 239,
¶ 16; see United States v. Yates, 438 F.3d 1307, 1316 (11th Cir. 2006) (stating that “the
prosecutor’s need for the video conference testimony to make a case and to expeditiously
resolve it are not the type of public policies that are important enough to outweigh the

                                              4
[d]efendant’s rights to confront their accusers face-to-face”).

{11} SLD’s analysts are part of a system that contemplates their testimony as noted by the
United States Supreme Court in Bullcoming v. New Mexico:

       [I]n jurisdictions in which it is the acknowledged job of analysts to testify in
       court about their test results, the sky has not fallen. State and municipal
       laboratories make operational and staffing decisions to facilitate the analysts’
       appearance at trial. Prosecutors schedule trial dates to accommodate the
       analysts’ availability, and trial courts liberally grant continuances when
       unexpected conflicts arise.

131 S. Ct. 2705, 2719 (2011) (alterations, internal quotation marks, and citations omitted).
The State asserts that “more than inconvenience” was shown in this case because the analyst
would be absent from her laboratory when it is short-staffed, and she would have to travel
seven hours, but we are not persuaded that this claim rises to more than inconvenience.

{12} Additionally, the district court’s finding of a burden ignores that part of the witness’s
job as a forensic scientist is testifying to her work in court. See David Mills, Ph.D, Spread
Thin: SLD Struggles With Shifts in DWI Environment, Scientific Laboratory Division News,
Vol. 7, Issue 1, at 2-3 (Fall/Winter 2010) (detailing the increased burdens of statewide travel
for analysts after the Confrontation Clause-based decision in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2532 (2009), noting that “SLD has [four] individuals who
have been trained and are qualified to serve as expert witnesses in alcohol-related DWI cases
and [six] who are qualified as experts in drug-related DWI/DUID cases”); see also
Bullcoming, 131 S. Ct. at 2713 (noting that SLD analysts qualify as expert witnesses in DWI
cases and holding that the analyst performing the analysis must personally testify under
Confrontation Clause analysis). We conclude that it was error for the district court to permit
two-way video testimony absent requiring an adequate showing of necessity.

B.     Allowing the Video Conference Testimony Was Not Harmless Error

{13} “Where . . . a constitutional error has been established, the [s]tate bears the burden
of proving that the error is harmless.” State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d
110. “[C]ourts should evaluate all of the circumstances surrounding the error.” Id. ¶ 43
(requiring reviewing courts to evaluate error on a case-by-case basis). In the present case,
the analyst provided the only testimony proving that Defendant had alcohol in his system.

{14} The other evidence presented at trial indicates that there is a reasonable possibility
that the blood test result influenced the jury’s decision. A police officer pulled Defendant
over because his registration was expired and, in the process, observed Defendant swerve
slightly, although the officer could not tell if Defendant had crossed the center line.
Defendant did not stumble or seem impaired and spoke intelligibly when pulled over. The
officer testified that Defendant had bloodshot eyes and slurred speech and admitted to

                                              5
drinking heavily the night before. In light of the lack of substantial support from the other
evidence, there is a reasonable possibility that the results of Defendant’s blood test
influenced the jury’s decision to convict him. We conclude that the error was not harmless.

III.   CONCLUSION

{15} We hold that the reasons articulated by the district court for finding it necessary to
allow the use of video testimony were insufficient as a matter of law to support its use and,
therefore, Defendant’s rights under the Confrontation Clause were violated. The error was
not harmless beyond a reasonable doubt. We reverse Defendant’s conviction and remand
the case to the district court for further proceedings consistent with this Opinion.

{16}   IT IS SO ORDERED.

                                              ____________________________________
                                              RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for State v. Smith, No. 31,265

APPEAL AND ERROR
Fundamental Error
Harmless Error

CONSTITUTIONAL LAW
Confrontation
Right to Confrontation

CRIMINAL LAW
Driving While Intoxicated

CRIMINAL PROCEDURE
Expert Witness
Right to Confrontation
Video or Remote Witness Testimony

EVIDENCE

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Blood/Breath Tests
Expert Witness




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