 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,457

10 STARLA GAUNA,

11          Defendant-Appellant.


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

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Nina Lalevic, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant



21                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Defendant appeals from the district court’s order revoking her probation and

 3 sentencing her to serve the remainder of her probationary term in the department of

 4 corrections. We issued a notice of proposed summary disposition, proposing to

 5 affirm. Defendant has filed a response to our notice, which we have duly considered.

 6 We remain unpersuaded that the district court erred, and affirm.

 7        Defendant raises the following three issues on appeal, which we address as two.

 8 She challenges the district court’s decision to permit a chemist to testify who did not

 9 perform the drug test. [DS 3; MIO 2-6] Defendant also argues that the State violated

10 discovery rules when it failed to disclose that chemist in a timely manner and that

11 admitting her testimony unduly prejudiced Defendant. [DS 3-4; MIO 6-8]

12 Testimony of the Chemist

13        In her docketing statement, Defendant asked whether the district court violated

14 her constitutional rights when it permitted Christine Whiteman to testify at the

15 revocation hearing as the Norchem Chemist when she did not actually perform the

16 drug test. [DS 3] The precise nature of Defendant’s argument was unclear and her

17 articulation of the issue lacked specificity about the arguments made below. Because

18 the docketing statement refers this Court to cases examining a defendant’s right of

19 confrontation in probation revocation hearings, we addressed this issue accordingly.


                                              2
 1 [DS 4] See State v. Guthrie, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, cert.

 2 granted, 2009-NMCERT-003, 146 N.M. 604, 213 P.3d 508; State v. Phillips,

 3 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.

 4        In her memorandum in opposition to our notice, Defendant argues that this

 5 Court’s opinion in Guthrie mandates a remand for a fair probation violation hearing

 6 in which Defendant is provided her right to confront the witness against her. [MIO

 7 2-6] We disagree that Guthrie requires us to remand where the State did not present

 8 evidence that the analyst who performed the test was unavailable to testify. A

 9 showing that a witness was unavailable is not the measure for satisfying due process

10 in all probation revocation hearings; rather, a showing of good cause is required for

11 not calling a particular witness. See Guthrie, 2009-NMCA-036, ¶ 9.

12        In Guthrie, we clarified that although the Sixth Amendment confrontation rights

13 do not apply in a probation revocation proceeding, a defendant has confrontation

14 rights in accordance with the right to due process under the Fourteenth Amendment.

15 Guthrie, 2009-NMCA-036, ¶¶ 12-21. The standards for satisfying confrontation

16 rights are more relaxed in the context of probation revocation, requiring only a

17 showing “of good cause for not requiring confrontation before revoking a defendant’s

18 probation based on hearsay testimony.” Id. ¶ 14. We explained in our notice that

19 good cause may exist where (1) the State specifically addressed “problems in securing


                                             3
 1 the presence of the absent witness or (2) [the State] specifically stat[ed] the reasons

 2 that the hearsay evidence offered has particular indicia of accuracy and reliability such

 3 that it has probative value.” Id. (emphasis added).

 4        As we stated in our notice, the State presented evidence that the witness was the

 5 certifying chemist at the laboratory, she was a quality control analyst, she was present

 6 at the collection of the sample, she reviewed the sample, she saw and signed the

 7 printout out Defendant’s test results, and she supervised the running of the

 8 instruments. [RP 181-82] Ms. Whiteman also testified that the instruments perform

 9 the tests. [RP 182]

10        We explained that even under the standards applicable to the Sixth Amendment

11 right to confront a witness in a criminal trial adjudicating guilt, it appears this expert

12 witness would be able to testify about the results generated by a non-testifying analyst.

13 The New Mexico Supreme Court has held that where the instrument that generates test

14 results is the “true accuser,” the non-testifying analyst is “a mere scrivener.” State v.

15 Bullcoming, 2010-NMSC-007, ¶ 19, 147 N.M. 487, 226 P.3d 1 (citation omitted),

16 cert. granted, __ U.S.__, __ S.Ct.__, 2010 WL 2008002 (U.S. Sept. 28, 2010) (No.

17 09-10876). Under these circumstances, the Court held that another analyst who was

18 qualified as an expert witness on the machine that generated the results could provide

19 live, in-court testimony about the results of the test under the Confrontation Clause.


                                               4
 1 Id. ¶ 20.

 2        We stated that, undoubtedly, Ms. Whiteman’s position, responsibilities, and

 3 experience with the particular test results at issue in the present case would qualify her

 4 as an expert witness able to testify about the drug testing results. See id. ¶¶ 6-8

 5 (upholding the trial court’s admission of the testimony of a blood alcohol analyst who

 6 did not perform the test and played no role in the preparation of the results at issue,

 7 but who helped to oversee the breath and alcohol programs in the state). Further, we

 8 observed that Defendant was able to, and did, cross-examine Ms. Whiteman about her

 9 involvement in the test results. [RP 182] We believe the State showed that Ms.

10 Whiteman’s testimony had at least the “particular indicia of accuracy and reliability

11 such that it has probative value,” to satisfy the due process requirements for probation

12 revocation proceedings. See Guthrie, 2009-NMCA-036, ¶ 14. Accordingly, we

13 proposed to affirm the district court’s admission of her testimony.

14        In response to our notice, Defendant argues that her case is most similar to

15 Guthrie, which requires a showing that a witness was unavailable, and that Aragon

16 held that chemical forensic results are testimonial and inadmissible as a business

17 records exception and under the Confrontation Clause. [MIO 4-5] We are not

18 persuaded.

19        In Guthrie, the supervisor of the defendant’s probation officer testified on


                                               5
 1 behalf of the state as to all the documentation in the defendant’s probation file without

 2 any personal knowledge about the defendant’s case. 2009-NMCA-036, ¶ 4. Further,

 3 the witness testified only as to conclusions contained in the file and the state made no

 4 showing that the evidence was sufficiently accurate or reliable so as to excuse the

 5 presence of the probation officer. Id. ¶ 15. The Court in Guthrie emphasized that “the

 6 requirement of ‘good cause’ to relax the need for confrontation also focuses upon the

 7 need for accurate or reliable evidence. . . . The weaker the probative value, the greater

 8 the need for confrontation, and, hence, the greater the need to justify the absence of

 9 the witness.” Id. ¶ 20. Without any statements explaining the probation officer’s

10 absence and in the absence of any statement regarding the accuracy and reliability of

11 the pure hearsay evidence, this Court remanded the case for the district court to

12 consider the reason for the witness’s absence and probative value of the evidence

13 without the witness. Id. ¶¶ 20, 22.

14        In contrast to Guthrie, in the present case, the testifying chemist was present at

15 the collection of the sample, she explained the process of the drug testing, and the

16 chain of custody of Defendant’s sample; she stated that the instruments perform the

17 tests and that she supervised the running of the instruments, and she personally

18 reviewed Defendant’s results and signed the report. [RP 182] Defendant’s response

19 to our notice does not make any argument about why, given Ms. Whiteman’s


                                               6
 1 responsibilities, experience, and involvement in Defendant’s test results, her testimony

 2 lacked the heightened “indicia of accuracy and reliability” that we believed that her

 3 testimony possessed, even under Aragon, where the substitute analyst did not

 4 “observe, supervise, or participate in either the analysis or the preparation of the

 5 report.” State v. Aragon, 2010-NMSC-008, ¶ 5, 147 N.M. 474, 225 P.3d 1280.

 6 Furthermore, unlike the testifying analyst in Aragon, the chemist in the current case

 7 offered her own opinion and conclusion about the test results and did not simply recite

 8 those of the testing analyst. Id. ¶ 23. [RP 182] For these reasons, we conclude, as we

 9 did in our notice, that the analyst’s testimony based on the test results was sufficiently

10 probative or reliable, to satisfy the due process requirements for probation revocation

11 proceedings without a showing of good cause for the absence of the testing analyst.

12 See Guthrie, 2009-NMCA-036, ¶ 20 (“Indeed, with a showing of sufficiently

13 probative or reliable hearsay evidence, there is no need to show good cause for the

14 absence of the witness.”).

15 Late Disclosure and Prejudice

16        Lastly, Defendant asks whether the State violated discovery rules when it failed

17 to disclose Ms. Whiteman in a timely manner and whether admitting her testimony

18 unduly prejudiced Defendant. [DS 3-4] Defendant states that the State amended its

19 witness list the day before trial to replace a different analyst from the laboratory with


                                               7
 1 Ms. Whiteman. [Id.] As we stated in our notice, however, the record indicates that

 2 the defense was given certified disclosure including the test results and Whiteman’s

 3 affidavits regarding the test results, her qualifications and involvement in the test

 4 results and the chain of custody and, therefore, had notice of the content of her

 5 testimony. [RP 122-74, 181]

 6        Our notice agreed with Defendant that she must demonstrate that the defense

 7 was prejudiced by the admission of Ms. Whiteman’s testimony because of the late

 8 disclosure. See State v. DeBorde, 1996-NMCA-042, ¶ 14, 121 N.M. 601, 915 P.2d

 9 906 (holding that due process requires a showing that a claimed discovery violation

10 in probation revocation proceedings prejudiced the defense and thus the outcome of

11 the trial). We observed that the record suggests that Defendant was aware of the

12 evidence upon which the State would rely in the probation revocation hearing,

13 including the content of Ms. Whiteman’s testimony. Defendant was aware that the

14 drug test results were at issue and that an analyst from the laboratory would testify.

15 We further stated that because the analyst appeared to be a mere scrivener in reporting

16 the results generated by the instruments, other analysts would have similarly testified,

17 and Ms. Whiteman was highly involved in Defendant’s particular test results. Also,

18 we noted that there was no indication that Defendant requested a continuance to

19 prepare her defense or cross-examination of Ms. Whiteman.


                                              8
 1        We proposed to conclude that Defendant made no showing or allegation below

 2 or on appeal explaining how she was prejudiced and how the outcome of the trial may

 3 have been different. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562,

 4 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”); State v.

 5 Fernandez, 117 N.M. 673, 677, 875 P.2d 1104, 1108 (Ct. App. 1994) (“In the absence

 6 of prejudice, there is no reversible error.”). As a result, we were not persuaded that

 7 Defendant demonstrated reversible error.

 8        In her response to our notice, Defendant asserts no new factual or legal

 9 arguments to persuade us that she was unable to prepare a defense in any manner that

10 might have changed the result.

11        For the reasons stated in our notice and in this opinion, we affirm.

12        IT IS SO ORDERED.



13                                         ___________________________________
14                                         CELIA FOY CASTILLO, Judge

15 WE CONCUR:




16 __________________________________
17 JONATHAN B. SUTIN, Judge


                                              9
1 __________________________________
2 TIMOTHY L. GARCIA, Judge




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