                                                                     2015 WI 40

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2009AP3073-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Michael R. Griep,
                                  Defendant-Appellant-Petitioner.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 353 Wis. 2d 252, 845 N.W.2d 24
                                   (Ct. App. 2014 – Published)
                                      PDC No: 2014 WI App 25

OPINION FILED:          April 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 12, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Winnebago
   JUDGE:               Thomas J. Gritton

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion
                        Filed)
  DISSENTED:
  NOT PARTICIPATING:    PROSSER, J., withdrew from participation.

ATTORNEYS:
       For      the    defendant-appellant-petitioner,         the   cause    was
argued by Tricia J. Bushnell, Kansas City, MO. The briefs were
filed by Tricia J. Bushnell.


       For      the    plaintiff-respondent,     the   cause   was   argued    by
Michael C. Sanders, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.




       An amicus curiae brief was filed by Keith Findley on behalf
of The Innocence Network, Madison.
        An   amicus   curiae   brief   was   filed   by   Kelli   S.   Thompson,
state    public   defender,     and    Jefren   E.   Olson,   assistant   state
public defender, on behalf of the Office of the State Public
Defender.




                                         2
                                                                          2015 WI 40
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.    2009AP3073-CR
(L.C. No.    2007CT1130)

STATE OF WISCONSIN                              :             IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,                                     FILED
       v.                                                         APR 23, 2015
Michael R. Griep,                                                    Diane M. Fremgen
                                                                  Clerk of Supreme Court
             Defendant-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.                 Affirmed.


       1     PATIENCE DRAKE ROGGENSACK, J.               We review a decision
of    the   court   of     appeals1   that   affirmed    the    circuit      court's2

ruling      that    admitted     an    expert    witness's        testimony        that
established the blood alcohol concentration (BAC) of Michael R.
Griep while he was operating his vehicle.                    The expert witness,
Patrick Harding, based his opinion in part on forensic tests
conducted by an analyst at the Wisconsin State Laboratory of

       1
       State v. Griep, 2014 WI App 25, 353 Wis. 2d 252, 845
N.W.2d 24.
       2
       The     Honorable      Thomas    J.   Gritton    of     Winnebago      County,
presided.
                                                                        No.     2009AP3073-CR



Hygiene    (Wisconsin       State    Laboratory)          who    was    unavailable          for
trial.     Based on Harding's testimony, Griep was convicted of
operating a motor vehicle while intoxicated (third offense).
     ¶2      Griep     appealed,           contending        that       his         right    of
confrontation        was    violated       when     the      circuit      court       allowed
Harding to rely in part on the analyst's forensic test results.
The court of appeals affirmed, concluding that Griep's right of
confrontation       was     not   violated        because       Harding       reviewed       the
analyst's forensic test results and other records and formed an
independent       opinion    of   Griep's        BAC,   as      approved      in     State    v.
Williams,3 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919 and State
v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93.

State v. Griep, 2014 WI App 25, ¶¶19, 22, 353 Wis. 2d 252, 845
N.W.2d 24.
     ¶3      We     conclude        that     Harding's           review        of     Griep's
laboratory    file,        including    the       forensic       test    results       of    an
analyst who was unavailable for trial, to form an independent
opinion to which he testified did not violate Griep's right of
confrontation.         Williams,       253       Wis. 2d     99,    ¶26;      Barton,        289
Wis. 2d 206, ¶20.           Accordingly, we affirm the court of appeals
decision     that     affirmed       the      circuit        court's       admission          of
Harding's testimony.



     3
       We refer to all subsequent references to State v.
Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, as
Williams.   We refer to Williams v. Illinois, __ U.S. __, 132
S. Ct. 2221 (2012), a different case, as Williams v. Illinois.



                                             2
                                                                           No.     2009AP3073-CR



                                       I.   BACKGROUND
        ¶4     This review involves Griep's claimed violation of his
right of confrontation regarding Harding's expert testimony that
was based in part on results of forensic tests conducted by an
analyst who was unavailable for trial.                         The historic facts are
not in dispute.
        ¶5     On Saturday, August 25, 2007, at approximately 12:48
a.m., a Winneconne Police Department officer stopped Griep for
speeding,          for    which   he    planned       to     issue    a    warning     ticket.
However, while talking with Griep, the officer smelled the odor
of alcohol and observed Griep's bloodshot and glassy eyes.
        ¶6     In response to the officer's question about alcohol

consumption, Griep stated that he drank a couple of beers at a
local       bar.         When   the    officer       asked    Griep       to    perform   field
sobriety tests, Griep agreed.                    Griep's performance on the field
sobriety tests indicated that he was intoxicated.                                After further
discussion, Griep admitted he had four beers.                                  Griep agreed to
perform       a      preliminary         breath        test     that       also      indicated
intoxication.            The officer reviewed Griep's record, which showed
two prior convictions for OWI.                   The officer transported Griep to
a nearby hospital for a blood draw.                          At the officer's request,
hospital staff conducted the blood draw without Griep's consent.4

        4
       The warrantless, nonconsensual search is not an issue in
our review.    Griep has not claimed that his blood draw was
unconstitutional before the circuit court, court of appeals, or
during our review.   See  Missouri v. McNeely, 569 U.S. __, 133
S. Ct. 1552, 1556 (2013), abrogating our decision in State v.
Bohling, 173 Wis. 2d 529, 547, 494 N.W.2d 399 (1993); see also
                                                     (continued)
                                                 3
                                                                           No.     2009AP3073-CR



      ¶7      The officer observed a phlebotomist draw Griep's blood
and   place    it    in     closed    vials.           The     blood      kit    was    properly
sealed.       The blood kit was secured at the Winneconne Police
Department         before    it      was     mailed        to     the      Wisconsin         State
Laboratory.
      ¶8      Wisconsin       State       Laboratory         analyst       Diane       Kalscheur
received and analyzed Griep's blood sample.                             Kalscheur authored
a concise report stating:                 (1) she received Griep's labeled and
sealed     blood     sample,      and      (2)       Griep's      blood    was     tested       for
ethanol       and     that        testing        revealed          a      certain       ethanol
concentration.            Thomas      Ecker,          an   Advanced        Chemist      at      the
laboratory, conducted a peer review of Kalscheur's report and

signed the laboratory report under the statement "As designee of
the Director, I do hereby certify this document to be a true and
correct report of the findings of the Wisconsin State Laboratory
of Hygiene."
      ¶9      At     Griep's         trial       for       third-offense            OWI,        the
phlebotomist testified about instructions for collecting blood,
using the kit provided by a police officer, and her role in
inspecting the blood kit before its use.
      ¶10     Kalscheur       was     unavailable            at   the     time     of    trial.5
Instead, the State called Patrick Harding, section chief of the
toxicology     section       of     the    Wisconsin         State      Laboratory,        as    an

State v. Foster, 2014 WI 131, ¶6, __ Wis. 2d __, 856 N.W.2d 847;
State v. Kennedy, 2014 WI 132, ¶33, __ Wis. 2d __, 856 N.W.2d
834.
      5
          Kalscheur was on leave at the time of trial.


                                                 4
                                                                          No.     2009AP3073-CR



expert     witness.         Harding       testified          that     he        had    reviewed
Kalscheur's work and examined the data produced by Kalscheur's
testing,     specifically         the    chromatograms,             as     well       as     other
records associated with the tests Kalscheur performed.                                     Harding
said that he was familiar with the process of obtaining blood
samples for ethanol testing, shipping them to the laboratory,
processing them for analysis, and the analysis of the samples.
     ¶11     When    the    State       asked      Harding's        opinion       on       whether
Kalscheur     tested        Griep's       blood       sample         consistently             with
laboratory procedures, defense counsel objected on Confrontation
Clause grounds.            Harding testified that all indications were
that Kalscheur followed the laboratory procedures and that the

instrument     was     working         properly.         Harding           said       that     the
machine's     proper       function      was       evident    from        the     results       of
calibration checks run throughout the course of the tests of
Griep's samples.           Harding concluded that the results of those
calibration         checks,       in     particular          those         Kalscheur           ran
immediately    before       and    after       the    Griep     samples,          showed       the
reliability    of     the     machine's        results.        Harding           opined      that
correctly running the sample through the calibrated instrument
resulted in a reliable blood alcohol reading.                            Harding concluded
that after reviewing all of the available data, he came to an
independent opinion that the alcohol concentration in Griep's
blood was 0.152 grams of ethanol per 100 milliliters of blood.

Harding also testified as to laboratory procedures and that if
there had been irregularities with the sample, they would have
been noted on a form by the analyst.                   None were noted.
                                               5
                                                                        No.     2009AP3073-CR



       ¶12     During cross-examination, Harding acknowledged that an
analyst      could      commit      misdeeds,        possibly       without      detection.
Harding also acknowledged that it is important that the analyst
be    competent       and     honest.         Harding       testified     that     when      he
testifies about forensic tests that he has personally completed,
he relies on the paperwork and notes he completed at the time of
testing because analysts at the laboratory conduct so many tests
that no one can remember details about each particular sample
without      reviewing        the   notes     that    were    made    contemporaneously
with the tests.
       ¶13     Griep's motion in limine and objection at trial that
sought    to    preclude       Harding's       testimony      were    grounded         in   the

Confrontation          Clause.           He        relied     on     Melendez-Diaz          v.
Massachusetts, 557 U.S. 305 (2009); Crawford v. Washington, 541
U.S. 36 (2004); and their relationship to Williams and Barton.
The   circuit     court        considered      the    Confrontation           Clause    issue
after conclusion of the presentation of evidence at the bench
trial.       The circuit court denied Griep's motion; heard closing
arguments; adjudged Griep guilty; convicted and sentenced him.
       ¶14     Griep appealed.           Before the court of appeals issued
its    decision,        the    United       States     Supreme       Court     accepted      a
petition in State v. Bullcoming, 226 P.3d 1 (N.M. 2010).                                    See
Bullcoming       v.     New    Mexico,      561      U.S.    1058     (2010)      (granting
certiorari).          The court of appeals held Griep's case in abeyance




                                               6
                                                               No.      2009AP3073-CR



pending the outcome in Bullcoming because the question presented
in that case6 was similar to the question in Griep's appeal.
        ¶15      As the court of appeals was again about to undertake
Griep's appeal, the court learned that the United States Supreme
Court had granted certiorari in another relevant case, People v.
Williams, 939 N.E.2d 268 (Ill. 2010).               See Williams v. Illinois,
__ U.S. __, 131 S. Ct. 3090 (2011) (granting certiorari).                         The
court       of   appeals   once    again   held   Griep's   case   to    await    the
outcome       in   Williams   v.   Illinois    because   the   decision      on   the
question presented7 may have had an effect on Griep's appeal.
        ¶16      On May 15, 2013, the court of appeals certified the
appeal to us.8         On June 14, 2013, we held the certification in

        6
       The question presented in Bullcoming was "[w]hether the
Confrontation Clause permits the prosecution to introduce
testimonial statements of a nontestifying forensic analyst
through the in-court testimony of a supervisor or other person
who did not perform or observe the laboratory analysis described
in the statements."    Petition for a Writ of Certiorari at i,
Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705 (2011)
(No. 09-10876), 2010 WL 3761875.
        7
       The question presented in Williams                    v. Illinois was
"[w]hether a state rule of evidence allowing                 an expert witness
to testify about the results of DNA testing                  performed by non-
testifying analysts, where the defendant has                 no opportunity to
confront  the   actual  analysts,  violates                 the   Confrontation
Clause."   Petition for a Writ of Certiorari                at i, Williams v.
Illinois, __ U.S. __, 132 S. Ct. 2221 (No.                  10-8505), 2010 WL
6817830.
        8
       The court of appeals, in its certification, defined the
issue as "Is an OWI defendant's right to confront the witnesses
against him violated when a supervisor of the state crime lab
testifies that a lab report prepared and certified by another,
but unavailable, lab analyst establishes the defendant's illegal
blood alcohol concentration? Does it make a difference that the
                                                     (continued)
                                           7
                                                                             No.    2009AP3073-CR



abeyance pending our disposition of State v. Deadwiller.                                       See
State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362
(decided       July 16,      2013).          On       November 20,         2013,    we   refused
certification.            The        court    of        appeals        issued      its   opinion
February 19,         2014,     and     held       that       Barton    remained      good    law.
Griep,        353   Wis. 2d     252,        ¶22.            The    court    held     that   "the
availability of a well qualified expert, testifying as to his
independent         conclusion       about        the       ethanol    testing      of   Griep's
blood as evidenced by a report from another state lab analyst,
was sufficient to protect Griep's right to confrontation."                                  Id.
                                      II.     DISCUSSION
                                A.    Standard of Review

        ¶17    We   review      whether       Harding's            testimony,      particularly
his reliance on testing conducted by Kalscheur, violated Griep's
right of confrontation.                 While "a circuit court's decision to
admit     evidence        is    ordinarily              a     matter       for     the   court's
discretion,         whether      the     admission            of      evidence      violates      a
defendant's right of confrontation is a question of law subject
to independent appellate review."                           Deadwiller, 350 Wis. 2d 138,
¶17 (quoting Williams, 253 Wis. 2d 99, ¶7).




lab supervisor said it was 'his' opinion even though he did not
perform any of the testing himself and simply noted that the
unavailable analyst followed the proper protocol?" Petition for
Certification at 1, Griep, 353 Wis. 2d 252 (No. 2009AP3073-CR),
2013 WL 1978568 (Petition denied).



                                                  8
                                                                          No.        2009AP3073-CR



                               B.    Confrontation Clause
        ¶18   Griep     argues       that     Harding's       testimony         violated        his
rights    under     the   Confrontation             Clause.         The   Sixth        Amendment
Confrontation Clause provides "In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him."               We begin by recognizing that the Sixth
Amendment right of an accused to confront the witnesses against
him is a fundamental right, as made applicable to and obligatory
on the states by the Fourteenth Amendment.                             Pointer v. Texas,
380 U.S. 400, 403 (1965) (concluding that the Sixth Amendment
right to confront witnesses against the accused is a fundamental
right).

        ¶19   In Williams, we first examined whether a laboratory
unit     leader's     trial         testimony,       based     in     part      on     a    report
authored and tests conducted by an analyst who did not testify
at trial, violated the Confrontation Clause.                              Williams was on
trial     for   possession           of     cocaine     with        intent      to         deliver.
Williams, 253 Wis. 2d 99, ¶¶3-4.                    A crime laboratory unit leader
testified as to her expert opinion based in part on a state
crime laboratory report that showed a substance in Williams'
possession      was   cocaine         base.         Williams    argued       his       right     of
confrontation was violated when the crime laboratory unit leader
testified rather than requiring the analyst who performed the
laboratory      tests     to    testify       and    also     when    the    circuit          court
admitted the state crime laboratory report.                          Id., ¶4.




                                               9
                                                                No.    2009AP3073-CR



       ¶20     We   held    that    the   unit   leader's    testimony      did    not
violate Williams' right of confrontation.                    Id., ¶¶20, 26.         We
stated:

       [T]he presence and availability for cross-examination
       of a highly qualified witness, who is familiar with
       the procedures at hand, supervises or reviews the work
       of the testing analyst, and renders her own expert
       opinion is sufficient to protect a defendant's right
       to confrontation, despite the fact that the expert was
       not the person who performed the mechanics of the
       original tests.
Id., ¶20.       Regarding the independent expert's opinion, we opined
that "an expert who forms an opinion based in part on the work

of    others    and   an    expert    who    merely   summarizes      the   work    of
others" are quite different because in that later instance, the
expert would be "a mere conduit for the opinion of another."
Id., ¶19.
       ¶21     We concluded that the expert witness in Williams was
highly qualified to render an expert opinion and was closely
connected to the tests and procedures involved in the actual
tests.       Id., ¶¶21-22.         The expert witness was a unit leader at

the Wisconsin State Laboratory with nine years of experience, a
bachelor's degree in chemistry with some graduate courses, who
had    substantial         experience     analyzing    for    the     presence     of
controlled substances.             Id., ¶21.     The witness also was familiar
with the various tests and had performed peer review on the
tests.       Id., ¶22.      The expert's peer review involved comparing
the notes with the evidence and the conclusions, and conducting
an overall examination of the data "making sure that all the


                                            10
                                                                    No.   2009AP3073-CR



notes coincide with the evidence, [and] that the data coincides
with [the] conclusion."             Id.     Additionally, we determined that
the witness was "not merely a conduit" for another's opinion,
but rather, she testified as to her independent opinion based in
part on facts and data gathered by someone else.9                    Id., ¶25.
       ¶22       We    also   considered     whether     a    laboratory        report
authored by the non-testifying analyst violated the defendant's
right of confrontation when it was admitted into evidence.                         Id.,
¶32.       We analyzed the admissibility of the report and the expert
witness's testimony as two separate issues.                   Id.     First, we held
that       the   laboratory    report     was    not   properly      admitted      as    a
business record under Wis. Stat. § 908.03(6) (1997-98), in part

because it was prepared for litigation.                 Id., ¶49.         However, we
concluded that the report's admission was harmless error.                          Id.,
¶50.       Second, we evaluated the expert witness's testimony.                         In
reaching         our   conclusion    that    admission       of     the   report    was
harmless error, we regarded the expert witness's testimony as
compelling and credible evidence from which the jury could have
concluded the substance at issue was cocaine.                     Id., ¶52.     Stated
otherwise, the witness's opinion was constitutional, and that

       9
       Stated otherwise, Williams permits a "substitute expert"
to testify when "the original test was documented in a thorough
way that permits the substitute expert to evaluate, assess, and
interpret it." David H. Kaye, David E. Bernstein, & Jennifer L.
Mnookin, The New Wigmore: Expert Evidence, § 4.10.2, p. 204 (2d
ed. 2010).    Furthermore, "the surrogate can be meaningfully
cross-examined about the tests that were conducted (and those
that were not), and questioned about the legitimacy of the
original analyst's conclusions and interpretations." Id.



                                            11
                                                                        No.     2009AP3073-CR



conclusion was unrelated to whether the admission of the report
violated the Confrontation Clause.
      ¶23   Griep's contention appears to be addressed by the rule
we set out in Williams.                  However, before proceeding to apply
Williams    to    his     claimed        Confrontation        Clause      violation,       we
consider whether federal opinions issued subsequent to Williams,
including Crawford, Bullcoming v. New Mexico, __ U.S. __, 131
S. Ct. 2705 (2011), and Williams v. Illinois, __ U.S. __, 132
S. Ct. 2221 (2012), affect our conclusions in Williams.
                          1.   Relevant federal opinions
      ¶24   In 2004, the United States Supreme Court took up the
Confrontation       Clause     in   Crawford.            At    Crawford's        trial    for

assault     and      attempted       murder,        he        claimed         self-defense.
Crawford, 541 U.S. at 40.                The defendant's wife did not testify
"because    of      the    state     marital     privilege,           which       generally
[barred] a spouse from testifying without the other spouse's
consent."     Id.     "[The] privilege [did] not extend to a spouse's
out-of-court statements admissible under a hearsay exception."
Id.   The state sought to admit the wife's statement to police as
a statement against penal interest.                 Id.       On review, the Supreme
Court held that admission of out-of-court testimonial statements
violated    the     Confrontation          Clause    unless       the         declarant    is
unavailable and the defendant had a prior opportunity to cross-
examine the declarant.          Id. at 59.
      ¶25   Crawford's discussion of testimonial statements of an
unavailable       declarant         is      consistent         with       the      Williams
requirement that in order to be permitted to testify an expert
                                            12
                                                                              No.     2009AP3073-CR



must form an independent opinion when the expert's opinion is
based        in    part       on    tests   performed        by    another    analyst.10         See
Williams, 253 Wis. 2d 99, ¶¶19, 25.                           This Williams' requirement
prevents           a     Crawford      violation        of    the        Confrontation       Clause
because out-of-court statements are not admitted as evidence,
but rather, they are replaced by independent opinions based both
on data collected by others and on the expert's own analysis.
        ¶26        Subsequent          to    the      Supreme           Court's     decision     in
Crawford, the court of appeals applied Williams.                                     Barton, 289
Wis. 2d           206,    ¶¶9,       20.      In    Barton,        the     court     of    appeals'
discussion focused on whether a unit leader at the state crime
laboratory could testify based in part on tests performed by

another analyst.                   The unit leader at the state crime laboratory
testified about chemical tests performed by an analyst who was
unavailable at trial.                      Id., ¶4.      The expert witness conducted
peer     review          of    the    analyst's     tests         and    testified    as    to   his
independent expert opinion.                        Id., ¶¶4, 16.            The State did not
seek to admit the laboratory report that detailed the analyst's
test results.             Id., ¶4.




        10
       The instant case does not present the same issues as
Crawford as the testimonial statements of an unavailable
declarant were not admitted into evidence in this case.    Cf.
Crawford v. Washington, 541 U.S. 36, 40 (2004).         Stated
otherwise, because neither Kalscheur's report nor the report's
conclusion was admitted into evidence, the Crawford holding is
not at issue.



                                                   13
                                                                            No.    2009AP3073-CR



        ¶27    The court of appeals applied Williams and held the
testimony       did       not    violate      Barton's     right      of    confrontation.11
Id.,     ¶¶9-13,      16,       20.     The     court    concluded         that    the    expert
witness       was     a     highly      qualified        expert       who    presented       his
independent         opinion.           Id.,     ¶13.     The    court       noted    that    the
witness held a supervisory position, had an academic background
in    the     area,   and       had    significant       experience         with    the    crime
laboratory, all of which were similar to the expert in Williams.
Id.     The witness testified that he had reviewed the case file,
including the gas chromatography tests, as a formal peer review.
He     explained      the       uniform       procedures       employed       by    the    crime
laboratory for the tests at issue.                       He said that based in part

on his review of the case file, the analyst had followed the
required       procedures         in    the     tests.         Id.,    ¶14.         The   court
concluded that the expert's testimony was an independent opinion
based on his own experience and his own analysis of the testing.
Id., ¶¶14-16.             The court of appeals held that under Williams,
the     witness's         testimony       did    not     violate      Barton's       right    of
confrontation and was admissible.                      Id., ¶16.




        11
       The court of appeals also referred to cases decided after
Crawford from other jurisdictions, holding similar testimony did
not violate the Confrontation Clause. State v. Barton, 2006 WI
App 18, ¶¶21-22, 289 Wis. 2d 206, 709 N.W.2d 93 (citing State v.
Delaney, 613 S.E.2d 699, 700 (N.C. Ct. App. 2005); People v.
Thomas, 30 Cal. Rptr. 3d 582, 587 (Cal. Ct. App. 2005),
abrogated by People v. Archuleta, 170 Cal. Rptr. 3d 361 (Cal.
Ct. App. 2014)).



                                                 14
                                                                          No.     2009AP3073-CR



        ¶28   The      court    of   appeals        also    clarified       the    effect          of
Crawford      on       Williams:        "The     holding       in    Crawford          does    not
undermine our supreme court's decision in Williams.                               Williams is
clear:        A    defendant's       confrontation          right    is   satisfied           if   a
qualified expert testifies as to his or her independent opinion,
even if the opinion is based in part on the work of another."
Id., ¶20.
        ¶29   In       Melendez-Diaz,      the       United     States      Supreme       Court
again took up the admissibility of forensic reports created by a
non-testifying           laboratory      analyst.             At    issue       was     whether
affidavits         reporting         forensic        analyses        were        testimonial,
"rendering the affiants 'witnesses' subject to the defendant's

right of confrontation under the Sixth Amendment."                                     Melendez-
Diaz, 557 U.S. at 307.                  Those affidavits showed a substance
connected         to    the    defendant       was    cocaine,        and       were    created
specifically to serve as evidence at a criminal trial.                                   Id. at
324.      The      Supreme      Court    held       that    the     forensic       laboratory
reports were testimonial statements subject to the Confrontation
Clause, and therefore, defendants have a right to confront the
authoring analyst at trial.                Id. at 311.              The Court recognized
that    Melendez-Diaz          falls    within       the    Crawford      line     of     cases:
"This    case      involves     little     more      than     the    application         of    our
holding in Crawford v. Washington . . . .                           The Sixth Amendment
does not permit the prosecution to prove its case via ex parte
out-of-court affidavits."               Id. at 329.           Melendez-Diaz's holding
regarding the testimonial nature of laboratory reports does not
alter our conclusion in Williams that a defendant's right to
                                               15
                                                                      No.       2009AP3073-CR



confront witnesses against him is not violated when a testifying
expert     reviews      the    case     file    and    comes    to     an       independent
conclusion, even though the expert's opinion is based in part on
tests performed by another analyst.12                  See Williams, 253 Wis. 2d
99, ¶¶19, 25.
     ¶30     In its 2011 decision in Bullcoming, the United States
Supreme     Court       next     revisited       the     Confrontation             Clause's
applicability to forensic laboratory reports.                         At Bullcoming's
trial on charges of driving while intoxicated, the trial court
admitted        a     forensic        laboratory       report        certifying         that
Bullcoming's BAC was above the BAC threshold for driving under
the influence.         Bullcoming, 131 S. Ct. at 2709.                The analyst who
certified the laboratory report did not testify.                            Instead, the
prosecution called a different analyst as a witness.                              Id.    The
witness was familiar with the laboratory's testing procedures,
but did not participate in, observe, or review the testing of
the defendant's blood sample.                  Id. at 2709, 2712.                The Court
focused    on       whether   the     prosecution      could    admit       a   laboratory


     12
       Likewise, Griep's contention does not present the same
issues as Melendez-Diaz because the non-testifying analyst's
written report and other records were not admitted into
evidence. See United States v. Turner, 709 F.3d 1187, 1190 (7th
Cir. 2013) (concluding that a case involving testimony based in
part on another analyst's forensic tests did not present a
Melendez-Diaz problem).      Therefore, whether the laboratory
report here was created specifically to serve as evidence in a
criminal proceeding, or introduced to prove the truth of the
matter asserted, is not relevant to our review.     See Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (introducing
drug analysis report to prove substance was cocaine).



                                           16
                                                                           No.     2009AP3073-CR



report containing a testimonial certification through the in-
court testimony of a witness that did not certify the report or
perform or observe the test that was the subject of the report.
Id.   at     2710.      The     Court       held     that    admission      of     the    report
violated the defendant's right of confrontation and reiterated
the rule in Crawford.               Id. at 2713.

       Our answer is in line with controlling precedent: As
       a rule, if an out-of-court statement is testimonial in
       nature, it 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.

       ¶31     The Supreme Court's discussion in Bullcoming differs
from the section of our Williams decision that is relevant to
Griep's      contention        of    a    Confrontation           Clause   violation.         In
Bullcoming, the prosecution admitted the forensic report as a

business record in violation of the Confrontation Clause.                                    Id.
at    2712.         Williams    also       concludes        that    the    forensic       report
cannot properly be admitted as a business record.                                Williams, 253
Wis. 2d       99,    ¶49.      However,         in   Williams,       the    expert       witness
reviewed the work of the testing analyst, was familiar with the
procedures at hand, and rendered an independent opinion.                                    Id.,
¶¶21-22.        The testimony in Bullcoming is not the independent
opinion of an expert.               See Bullcoming, 131 S. Ct. at 2712, 2716
(stating that the witness did not review the test results and
prosecution never asserted that the witness had an independent

opinion concerning the defendant's BAC).                             Therefore, when an
expert     witness      reviews          data   yielded      by    laboratory       tests    and

                                                17
                                                                    No.       2009AP3073-CR



reaches his or her own independent opinion based on that data
and his or her own knowledge, Williams applies and Bullcoming
provides no guidance.
      ¶32    Justice      Sotomayor     emphasized         the    limited       reach    of
Bullcoming    in    her   concurrence.         Id.    at    2722    (Sotomayor,         J.,
concurring).        She wrote separately to highlight her view that
the   laboratory       report     was   testimonial         because       its     primary
purpose was evidentiary, but she also wrote "to emphasize the
limited reach of the Court's opinion."                     Id. at 2719.           Justice
Sotomayor distinguished Bullcoming from other cases where the
trial witness "is a supervisor, reviewer, or someone else with a
personal, albeit limited, connection to the scientific test at

issue."     Id. at 2722.          She also distinguished cases where the
expert witness was asked for and gave an independent opinion
about underlying testimonial reports that were not admitted into
evidence.     Id.      She noted that in Bullcoming, the prosecution
acknowledged that the witness offered no opinion about the BAC.
Justice     Sotomayor      concluded:          "We    would      face     a     different
question if asked to determine the constitutionality of allowing
an expert witness to discuss others' testimonial statements if
the   testimonial      statements       were    not    themselves         admitted       as
evidence."     Id.     Justice Sotomayor's concurrence reinforces our
conclusion that Bullcoming does not guide our decision when the
issue is the independent opinion of an expert witness who has
reviewed     the       forensic       test     results,          rather       than      the
admissibility of an underlying forensic report.


                                         18
                                                                            No.     2009AP3073-CR



        ¶33        The Supreme Court provided guidance on when out-of-
court testimonial statements are admissible, when statements are
testimonial, and under what circumstances testimonial laboratory
reports        are         admissible         in     Crawford,          Melendez-Diaz,           and
Bullcoming.           Crawford, 541 U.S. at 59; Melendez-Diaz, 557 U.S.
at    311;     Bullcoming,           131      S. Ct.     at     2713.      Wisconsin      cases,
Williams and Barton, go a step further and address situations
where    the        State     does      not      offer    the    laboratory        report     into
evidence,          but     instead      offers      the       independent    opinion        of   an
analyst who did not perform the tests.                                Williams, 253 Wis. 2d
99,    ¶20;        Barton,     289      Wis. 2d      206,       ¶16.      Stated    otherwise,
federal        Confrontation           Clause       opinions      predating       Williams        v.

Illinois do not affect our rule in Williams, or the court of
appeals' application in Barton.                         We now examine whether Williams
v. Illinois affects Williams and Barton.
        ¶34        Williams v. Illinois, the Supreme Court's most recent
Confrontation             Clause       opinion      that       examines     presentation          of
expert opinion, involved Williams' bench trial for rape.                                  There,
the    prosecutor           called     a   forensic        specialist       at    the   Illinois
State    Police           laboratory       who     testified      that     according     to      the
police laboratory's business records, the victim's vaginal swabs
were     sent        to    Cellmark,          an   outside,       accredited       laboratory.
Williams v. Illinois, 132 S. Ct. at 2229.                              Cellmark returned the
swabs to the police laboratory, and set out a male DNA profile
derived from the semen on the swabs.                            Id.     Upon receipt of the
report    and        profile,      a    police      laboratory          analyst    conducted       a
search        of    the     Illinois       State        DNA    database,     revealing        that
                                                   19
                                                                       No.       2009AP3073-CR



Williams' DNA matched the DNA profile obtained from the swabs
processed       by    Cellmark.        Id.        The   police    laboratory         analyst
testified         about       standard        procedures,         about          Cellmark's
accreditation, and that her comparison of the DNA profiles on
the Illinois database with the Cellmark profile resulted in a
match.         Id.   at    2229-30.       The     Cellmark      DNA   profile       was    not
admitted into evidence.            Id. at 2230.             The defendant objected to
the expert's testimony on Confrontation Clause grounds.                               Id. at
2231.        The trial court ruled against Williams.                  Id.
        ¶35     Williams     v.   Illinois        is    a    plurality       opinion      with
Justice       Thomas      concurring    in      judgment.13       Id.       at    2227.      A
plurality of the Supreme Court held the expert's testimony did

not   violate        Williams'    right      of    confrontation.            However,      the
Court's four-one-four division "left no clear guidance about how
exactly an expert must phrase [his] testimony [that concerns]
the results of testing performed by another analyst in order for
the [expert's] testimony to be admissible."                           United States v.
Maxwell, 724 F.3d 724, 727 (7th Cir. 2013); see also Williams v.
Illinois, 132 S. Ct. at 2277 (Kagan, J., dissenting); id. at
2255 (Thomas, J., concurring in the result, but with no portion
of the plurality's reasoning).
        ¶36     In determining what effect a plurality opinion has on
our review, we apply Marks v. United States, 430 U.S. 188, 193

        13
       Justice Breyer also wrote a concurrence in Williams v.
Illinois, but in contrast to Justice Thomas, he joined the
plurality's opinion in full.     See Williams v. Illinois, 132
S. Ct. at 2244–45, 2252 (Breyer, J., concurring).



                                             20
                                                                    No.    2009AP3073-CR



(1977).     Deadwiller, 350 Wis. 2d 138, ¶30; see also Vincent v.
Voight, 2000 WI 93, ¶46 n.18, 236 Wis. 2d 588, 614 N.W.2d 388;
Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 21-22,
580   N.W.2d   156      (1998).     "When       a    fragmented     [Supreme]       Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may
be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds."                     Marks, 430 U.S. at
193   (internal    quotations       and    citations       omitted).        The     Marks
narrowest grounds rule is applicable only when one opinion is
narrower    than   the    other    or     is    a   logical    subset     of   another,
broader opinion.         Deadwiller, 350 Wis. 2d 138, ¶30 (citing Evan

H.    Caminker,    Precedent      and     Prediction:         The   Forward-Looking
Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 33
n.120 (1994)); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991).       If    no     "theoretical          overlap"      exists      between    the
rationales of the plurality and the concurrence, it is binding
only as to its "specific result."                   Deadwiller, 350 Wis. 2d 138,
¶30 (citing Berwind Corp. v. Comm'r of Soc. Sec., 307 F.3d 222,
234 (3d Cir. 2002)).14            A plurality opinion without overlapping

       14
       See also Ass'n of Bituminous Contractors, Inc. v. Apfel,
156 F.3d 1246, 1254-55 (D.C. Cir. 1998) (agreeing that when
Marks does not apply for lack of a "narrowest opinion," the only
binding aspect of a particular fractured opinion was its
specific result); Shenango Inc. v. Apfel, 307 F.3d 174, 185 (3d
Cir. 2002) (stating that the only binding aspect of a fragmented
decision without a narrower ground is the specific result); Lair
v. Bullock, 697 F.3d 1200, 1205 (9th Cir. 2012) (stating that if
no opinion of the Court is narrow, the splintered decision is
binding only as to its specific result); Gibson v. Am. Cyanamid
                                                     (continued)
                                           21
                                                                     No.       2009AP3073-CR



rationales requires a specific result only when the parties are
in a "substantially identical position."                    Id.
        ¶37   Williams    v.   Illinois    does       not    contain       a    "narrowest
opinion."          Williams v. Illinois, 132 S. Ct. at 2228, 2244-45
(Breyer,      J.,     concurring),    2255          (Thomas,       J.,      concurring);
Deadwiller, 350 Wis. 2d 138, ¶32.                   Five justices of the United
States Supreme Court concluded in Williams v. Illinois that, in
certain circumstances, the Confrontation Clause does not bar an
expert witness from basing his or her testimony on a forensic
laboratory report prepared by another analyst when the defendant
was never given an opportunity to cross-examine the analyst who
prepared the report or conducted the forensic testing.                            Williams
v. Illinois, 132 S. Ct. at 2228.               However, no opinion gathered a
majority      of    the   Court.     Id.       at     2244,       2252     (Breyer,      J.,
concurring), 2261 (Thomas, J., concurring).                        The four justices
of the plurality concluded that the testimony did not violate
the   Confrontation       Clause   because      the    report       was    not    used   to
prove the truth of the matter asserted and its primary purpose
was not to accuse a targeted individual of a crime.                                 Id. at
2243.     While a fifth justice agreed with the disposition of the
case, he concluded that the report was non-testimonial because


Co., 760 F.3d 600, 615, 619-20 (7th Cir. 2014) (acknowledging a
fractured opinion produced only its specific result as binding
precedent because no opinion was narrowest); State v. Michaels,
95 A.3d 648, 665-66 (N.J. 2014) (citing Deadwiller and noting
that the Marks approach works only when the narrowest opinion
represents a common denominator and when no overlap exists, a
fragmented decision is binding only as to its specific result).



                                          22
                                                                           No.   2009AP3073-CR



it     "lacked     the     requisite       'formality         and      solemnity'     to    be
considered         'testimonial.'"15              Id.      at       2255     (Thomas,      J.,
concurring).             Four    justices     rejected          both       the   plurality's
primary purpose test and Justice Thomas' solemnity-based test
and     instead       concluded        that        the        expert        testimony      was
"functionally        identical        to     the        'surrogate         testimony'"       in
Bullcoming and that Bullcoming controlled the outcome.16                              Id. at
2267    (Kagan,     J.,     dissenting).           As    no     opinion      overlaps      with
another,     the    Marks       narrowest    grounds       rule      does    not   apply     to
Williams v. Illinois.              Marks, 430 U.S. at 193; Deadwiller, 350
Wis. 2d 138, ¶30; King, 950 F.2d at 781.
       ¶38   Therefore, Williams v. Illinois is binding only as to

its "specific result."             Deadwiller, 350 Wis. 2d 138, ¶30 (citing
Berwind Corp., 307 F.3d at 234).                   A plurality opinion without a
narrowest grounds concurrence requires a specific result when

       15
       Justice Thomas' concurrence in Williams v. Illinois also
explicitly rejected the plurality's "flawed analysis" and
asserted   that  "there   was  no  plausible  reason   for  the
introduction of Cellmark's statements other than to establish
their truth."    Williams v. Illinois, 132 S. Ct. at 2255-56
(Thomas, J., concurring).
       16
       Under Marks, the positions of the justices who dissented
from the judgment are not counted in examining the divided
opinions for holdings.     Marks v. United States, 430 U.S. 188,
193 (1977).    Rather, Marks instructs that the holding is the
narrowest position "taken by those Members who concurred in the
judgment[]."     Id. (internal quotation marks and citation
omitted).    Therefore, Marks rejects any contention that the
holding of Williams v. Illinois is Justice Thomas' and the
dissent's   rejection   of    the  plurality's  not-for-the-truth
rationale. Cf. Leading Cases, 126 Harv. L. Rev. 266, 276 (Nov.
2012).



                                             23
                                                                        No.     2009AP3073-CR



the parties are in a substantially identical position.                             Berwind,
307 F.3d at 234.           Griep is not in a substantially identical
position to the parties in Williams v. Illinois.                          The difference
between Griep's circumstances and those in Williams v. Illinois
is illustrated by our recent opinion in Deadwiller.
      ¶39    Deadwiller is our sole Confrontation Clause case since
Williams     v.    Illinois.          In       Deadwiller,        the    defendant        was
identified    as    a    suspect   in      a     sexual    assault       through      a   DNA
profile derived at an out-of-state laboratory from the victim's
vaginal and cervical swabs, which matched Deadwiller's profile
in Wisconsin's DNA database.                Deadwiller, 350 Wis. 2d 138, ¶5.
We    considered        application        of    the      Marks     narrowest        ground

principle     to   Williams     v.      Illinois,         but     concluded        that   no
Williams     v.    Illinois    concurring          opinion        fit     the     narrowest
grounds rule.        Id., ¶¶30-32.              We recognized that Williams v.
Illinois would still be binding as to its specific result when
the parties are in a substantially identical position.                             Id., ¶30
(citing Berwind, 307 F.3d at 234).                     We compared the facts of
each case and concluded that Deadwiller and Williams were in
substantially identical positions, and therefore we were bound
by the specific result in Williams v. Illinois.                           Id., ¶32.       In
concluding we were so bound, we noted similarities in the cases.
Id.

      In both cases, the victim reported the crime and
      underwent a sexual assault examination, which produced
      vaginal swabs containing DNA of the perpetrator. In
      both cases, police officers picked up the evidence,
      inventoried the evidence, and sent the evidence to the
      state crime lab, which then sent the evidence to an

                                            24
                                                                    No.   2009AP3073-CR


       out-of-state laboratory for DNA testing. Further, the
       out-of-state laboratory in both cases sent back the
       genetic material and a DNA profile of the perpetrator
       produced from the vaginal swabs. In both cases, state
       crime lab analysts entered the DNA profile into a DNA
       database, which resulted in a match to the defendant.
       When called to testify, the state crime lab analyst in
       both cases reported that the DNA profile sent by the
       out-of-state lab matched the DNA profile resulting
       from the database. The DNA profile was not introduced
       into evidence in either case. Prosecutors in both
       cases introduced inventory reports, evidence receipts,
       and testimony to prove a chain of custody, i.e. that
       the DNA profile was produced from swabs taken from the
       victims.
Id.

       ¶40   Deadwiller concludes the lines of relevant state and
federal Confrontation Clause cases.                 In review, Williams and
Barton establish that an expert witness does not violate the
Confrontation Clause when his or her opinion is based in part on
data created by a non-testifying analyst if the witness "was not
merely a conduit."         Williams, 253 Wis. 2d 99, ¶¶20, 25; accord
Barton, 289 Wis. 2d 206, ¶¶13-14.               In other words, if the expert
witness reviewed data created by the non-testifying analyst and
formed an independent opinion, the expert's testimony does not

violate the Confrontation Clause.                 Williams, 253 Wis. 2d 99,
¶20;   Barton,     289   Wis. 2d    206,    ¶¶13-14.      No    federal      decision
addresses this type of expert testimony.               In Crawford, admission
of testimonial statements of an unavailable declarant violated
the Confrontation Clause if the declarant was unavailable and
the    defendant     had   no      prior    opportunity        to     cross-examine.
Crawford, 541 U.S. at 59.              Melendez-Diaz applied Crawford to
conclude that testimonial statements made in a forensic report


                                           25
                                                                              No.     2009AP3073-CR



that    was    admitted        into    evidence,       but    was     created         by     a    non-
testifying          analyst,          violated        the      Confrontation                Clause.
Melendez-Diaz, 557 U.S. at 311.                      The facts of Bullcoming go one
step    further,       involving       both     the    admission          of    a     testimonial
forensic report and testimony of an expert witness who did not
conduct the tests or offer an independent opinion.                                    Bullcoming,
131 S. Ct. at 2712, 2716.                However, Crawford, Melendez-Diaz, and
Bullcoming do not address a situation where a non-testifying
analyst's       testimonial          statements       do    not     come       into     evidence,
i.e., where the testimonial forensic report is not admitted and
the    expert       witness     who    testifies       at    trial       gives       his     or    her
independent         opinion     after       review     of    laboratory             data    created

another       analyst.          Stated       otherwise,        when       a     non-testifying
analyst documents the original tests "with sufficient detail for
another       expert      to    understand,          interpret,          and        evaluate       the
results,"       that      expert's          testimony        does        not        violate        the
Confrontation         Clause.         David     H.    Kaye,       David    E.       Bernstein,       &
Jennifer       L.     Mnookin,        The     New     Wigmore:            Expert        Evidence,
§ 4.10.2, pp. 204-05 (2d ed. 2010); accord Williams, 253 Wis. 2d
99, ¶20; Barton, 289 Wis. 2d 206, ¶¶13-14.                          Williams v. Illinois
has    not    altered     Confrontation          Clause       jurisprudence,               which    we
confirmed in Deadwiller.               See Deadwiller, 350 Wis. 2d 138, ¶30.
                               2.    Griep's circumstances
       ¶41    In the case now before us, we compare the parties'
positions in Griep to that of the parties' positions in Williams
v.    Illinois      and   conclude       that       they    are    not     in       substantially
identical positions.                First, this is not a sexual assault case.
                                               26
                                                                          No.     2009AP3073-CR



Cf. Williams v. Illinois, 132 S. Ct. at 2229.                                Here, analysts
used a laboratory test, gas chromatography, to determine Griep's
BAC, which differs from the creation of a DNA profile and the
process of matching DNA profiles that was used in Williams v.
Illinois.       Cf. id.          Second, the analyst conducted all of the
laboratory work here in the same laboratory that employed the
expert       witness,      rather     than    utilizing          work     provided       by    an
outside laboratory.             Cf. id. at 2229-30.                The only similarity
between       this       case   and    Williams       v.     Illinois        is      that     the
prosecution did not introduce the forensic reports into evidence
in either case.           Id. at 2230.
       ¶42     We conclude Griep is not in a substantially identical

position       to    Williams.         Therefore,          the     specific          result    of
Williams v. Illinois is not binding in this case as it was in
Deadwiller.          Cf. Deadwiller, 350 Wis. 2d 138, ¶32.                            For that
reason, we need not further discuss the various rationales of
Williams v. Illinois as we did in Deadwiller.                           See id., ¶¶33-36.
       ¶43     Aside from its discussion of the Williams v. Illinois
rationales, Deadwiller also provides our only post-Williams v.
Illinois analysis of Williams and Barton.                            Id., ¶¶37-40.             We
concluded      that       Williams    and    Barton        are    consistent          with    our
application         of    the   specific     result     of       Williams       v.    Illinois.
Id.,   ¶37.         We    applied     Williams    and      Barton       to   the      facts    in
Deadwiller and determined that the expert witness reviewed the
out-of-state laboratory's procedures and offered his independent
conclusion, and therefore did not violate the defendant's right
of confrontation.           Id., ¶40.
                                             27
                                                                       No.       2009AP3073-CR



       ¶44       As   we   tacitly   recognized         in   Deadwiller,         nothing    in
Williams v. Illinois affects our decision in Williams and its
application by the court of appeals in Barton.17                           See id., ¶¶37-
40.    In addition, Williams v. Illinois is not otherwise useful
to our analysis here because Marks does not apply18 and Griep is
not    in    a    substantially      identical          position     to    the     convicted
perpetrator.19             As   Williams    v.       Illinois   does      not    affect    our
conclusion in Williams or the court of appeals' application in
Barton, our remaining task is to apply Williams and Barton to
this case.
                 C.   Admission of Patrick Harding's Testimony
       ¶45       We rely on pre-Williams v. Illinois opinions, as well

as    our    only     Confrontation        Clause      decision      after      Williams    v.
Illinois, Deadwiller, to determine whether the State's witness,
Patrick      Harding,       testified      in    violation      of    Griep's      right    of


       17
       Other courts have also held Williams v. Illinois is
"confined to the particular set of facts presented in that
case."   United States v. James, 712 F.3d 79, 95 (2d Cir. 2013)
(applying pre-Williams v. Illinois opinions); accord Jenkins v.
United States, 75 A.3d 174, 189 (D.C. Cir. 2013) (agreeing
Williams v. Illinois is confined to its facts and applying pre-
Williams v. Illinois opinions in the Supreme Court and its own
jurisdiction).
       18
       Marks does not apply when no concurring opinion is
narrower than the others. See Marks, 430 U.S. at 193; State v.
Deadwiller, 2013 WI 75, ¶30, 350 Wis. 2d 138, 834 N.W.2d 362;
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991).
       19
       Cf.   Deadwiller, 350   Wis. 2d  138,  ¶32   (concluding
Deadwiller was in a substantially identical position in a case
with different facts).



                                                28
                                                                       No.   2009AP3073-CR



confrontation.20            Harding served as the State's expert witness
for Griep's BAC and testified in place of Kalscheur, who was not
available       at    the     time    of   trial.      While     Harding     was   not    an
official peer reviewer of Kalscheur's forensic tests, Harding
testified that he examined the data "available the day after the
analysis for the person that reviewed the report when it went
out."         His    review       included   chromatograms       and    results    of    the
entire analytical run that Kalscheur conducted, which described
the   calibration        checks       that   were    used   to   assess      whether     the
machine was performing properly and whether the test was run
correctly.21
        ¶46    Harding        testified      that    all    indications        were     that

Kalscheur followed the laboratory procedures, and the instrument
was   working        properly.         Harding      testified    that    the    machine's
proper       function       was    evident   from     the   results     of   calibration

        20
       However, we note that Crawford, Melendez-Diaz, and
Bullcoming are not helpful to our analysis because they focus on
when out-of-court testimonial statements may be entered into
evidence and what statements are testimonial.      Crawford, 541
U.S. at 59; Melendez-Diaz, 557 U.S. at 311; Bullcoming, 131
S. Ct. at 2713. As our focus here is on the witness's in-court
testimony, Crawford, Melendez-Diaz, and Bullcoming do not guide
our analysis.
        21
       It is significant that the laboratory file included not
only Kalscheur's report but also raw data, gas chromatograms.
This provided "adequate detail for an expert to do his own
analysis and reach his own conclusions."     See Kaye, et al.,
supra note 9, p. 201. In this case, "the expert is exercising a
degree of independent judgment using his own substantive
expertise rather than relying entirely on the expertise of
others."   Id. at p. 202; accord Williams, 253 Wis. 2d 99, ¶20;
Barton, 289 Wis. 2d 206, ¶¶13-14.



                                              29
                                                                      No.    2009AP3073-CR



checks run throughout the course of the tests.                           Harding said,
"[t]he      calibration      checks      that       are   analyzed     throughout      the
course of the analytical run read correctly, specifically and
importantly, the two known samples that bracketed Mr. Griep's
sample read within their accepted range."                        Harding opined that
correctly     running       the    sample      through     the    testing     instrument
resulted     in    a    reliable    blood      alcohol     reading.         Harding   also
opined that after reviewing the data, he came to an independent
opinion     that       Griep's    BAC    was    0.152.22        And   finally,   it   was
Harding's opinion that laboratory procedures required notation
of any irregularities with the sample, and there had been no
such notation by the analyst.

      ¶47     Consistent with Williams and Barton, the pre-Williams
v. Illinois law of this jurisdiction, Harding's testimony did
not   violate      Griep's       right   of     confrontation;        accordingly,     his
testimony     was       properly    admitted.23           Our   Confrontation     Clause
jurisprudence begins with Williams.                   Williams set out a two-part
framework to analyze the testimony of an expert witness, relying

      22
       That Harding arrived at and testified to the same
conclusion as Kalscheur's report, that Griep's BAC was 0.152,
does not require us to conclude that Harding's testimony
introduced Kalscheur's report.    Harding's review of Griep's
laboratory file and his opinion formed by interpretation of raw
data using his expertise merely yielded the same independent
opinion reached by Kalscheur.
      23
       United States Supreme Court opinions prior to Williams v.
Illinois do not assist in our analysis or affect the value of
Williams and Barton, as previously discussed.      Additionally,
Williams v. Illinois does not affect the value of those two
cases. See Deadwiller, 350 Wis. 2d 138, ¶¶37-40.



                                               30
                                                                        No.    2009AP3073-CR



on forensic tests conducted by a non-testifying analyst, for
Confrontation Clause violations.                Williams, 253 Wis. 2d 99, ¶26.
Williams provides that expert testimony based in part on tests
conducted by a non-testifying analyst satisfies a defendant's
right of confrontation if the expert witness:                           (1) reviewed the
analyst's tests, and (2) formed an independent opinion to which
he testified at trial.              Id.        We address each requirement of
Williams' framework in turn.
                                    1.     Review
        ¶48   In both Williams and Barton, the analyst who conducted
the testing was unavailable to testify at trial.                              Instead, the
analysts' supervisors testified as expert witnesses about the

independent opinions they formed.                      Williams, 253 Wis. 2d 99,
¶22; Barton, 289 Wis. 2d 206, ¶15.                In both Williams and Barton,
the   supervisors      conducted     reviews          in    the    ordinary     course     of
laboratory      procedures.         Williams,         253     Wis. 2d     99,    ¶22;    see
Barton, 289 Wis. 2d 206, ¶14.
        ¶49   Peer   review   generally         involves          examining     the     notes
taken     and   data    collected         in    the        case    to   make     sure    the
conclusions written in the report are correct.                            Williams, 253
Wis. 2d 99, ¶22.        In Williams, the expert witness testified how
peer review operates when testing for a controlled substance:
she compared the graphical data yielded by the tests and graphs
reflecting standard, known, values.                        Id., ¶23.          The expert's
comparison allowed her to conclude the sample being tested was a
controlled substance.         Id.    In Barton, an arson case, the expert
used graphical data called chromatograms from different stages
                                           31
                                                                      No.     2009AP3073-CR



of   gasoline   evaporation        to   conclude      gasoline         was    present   in
charred wood samples.         Barton, 289 Wis. 2d 206, ¶15.                    The expert
in Barton compared the chromatograms of control samples with
chromatograms of the samples from the arson case, similar to the
expert's comparison in Williams.              See id.
      ¶50   Here, Harding did not conduct a formal peer review of
Kalscheur's tests.         Instead, peer review was completed by Thomas
Ecker, an advanced chemist at the laboratory.                         However, Harding
completed    the    same    examination       as   occurs       in    the    formal   peer
review.     Harding examined "[t]he same data that is available the
day after the analysis for the person that reviewed the report
when it went out and that is the chromatograms and the paperwork

associated with the whole analytical run that Diane did on the
30th of August, 2007."            In short, Harding reviewed the same data
as the peer reviewer.
      ¶51   Our decisions indicate that the review necessary to
protect a defendant's right of confrontation need not be formal
peer review.        Williams, 253 Wis. 2d 99, ¶20; Deadwiller, 350
Wis. 2d 138, ¶40.          In Williams, we reasoned:                 "the presence and
availability       for     cross-examination          of    a        highly     qualified
witness, who is familiar with the procedures at hand, supervises
or reviews the work of the testing analyst, and renders her own
expert opinion is sufficient to protect a defendant's right to
confrontation."          Williams, 253 Wis. 2d 99, ¶20.                     Similarly, in
Deadwiller,     the      expert    witness's       review   of       the     out-of-state
laboratory's       DNA     profile,     procedures,         and       quality     control


                                         32
                                                                       No.    2009AP3073-CR



measures      was   sufficient        to    protect       the   defendant's      right    of
confrontation.
        ¶52   Harding's       review       of    Kalscheur's      report,      data,     and
notes     fulfills      the      Williams        review    requirement        because     he
reexamined the data.                See Williams, 253 Wis. 2d 99, ¶¶22-23.
Therefore, Harding's review was sufficient to protect Griep's
right of confrontation, when combined with Harding's independent
opinion.
                              2.    Independent opinion
        ¶53   In    both      Williams      and      Barton,     the   expert     witness
offered his or her independent opinion based in part on the data
provided by the non-testifying analyst and the expert witness's

own expertise.          See Williams, 253 Wis. 2d 99, ¶¶25-26; Barton,
289 Wis. 2d 206, ¶16.               Williams and Barton also discussed the
expert witnesses' qualifications and noted they were qualified
to give an expert opinion based on the information before them.
Williams, 253 Wis. 2d 99, ¶21; Barton, 289 Wis. 2d 206, ¶¶13,
16.      We   discussed       the    role       of   an   independent        opinion    most
thoroughly in Williams, where we stated that "one expert cannot
act as a mere conduit for the opinion of another."                              Williams,
253 Wis. 2d 99, ¶19.             However, we recognized that an expert may
form an independent opinion based in part on the work of others
without acting as a "conduit."                  Id., ¶25.
        ¶54   In    Williams,       the    expert     witness     reviewed      the    tests
done by another analyst, including the data and notes, and then
formed her own opinion.               Id.       We concluded that the testifying
expert's      opinion      was     sufficiently       independent      to     protect    the
                                                33
                                                                               No.     2009AP3073-CR



defendant's         right        of    confrontation,           and        was       not    a     mere
recitation of another analyst's conclusions.                               Id., ¶¶25-26.            In
Barton, the expert offered his opinion based on his review of
the entire file, including data similar to the chromatograms in
this case.          Barton, 289 Wis. 2d 206, ¶¶13-14.                                The court of
appeals       concluded     the       expert's          testimony     was      his     independent
opinion.        Id., ¶13.
        ¶55     Here, Harding was qualified to present testimony on
the laboratory procedures and come to an independent opinion
regarding Griep's BAC.                     To arrive at his conclusion, Harding
relied     on     his    review       of     data       collected     by    Kalscheur,           other
records       compiled      at    the       laboratory,        and     his       own    expertise.

Pointing to Harding's lack of personal knowledge of Kalscheur's
testing of Griep's blood sample, Griep argues that Harding's
opinion could not have been independent.                              However, we held in
Williams, and the court of appeals held in Barton, that it was
acceptable that the analyst's report, data, and notes were the
factual bases of the expert witness's opinion, in addition to
the witness's own professional expertise.                            Williams, 253 Wis. 2d
99, ¶25; Barton, 289 Wis. 2d 206, ¶13.                                Williams and Barton
conclude that an expert witness need not have personal knowledge
of   the      forensic    tests,        as       long    as   the    witness's         opinion      is
reached       independently           and        is     not   merely       a     recitation         of
another's         conclusions.             See    Williams,         253    Wis. 2d         99,    ¶25;
Barton, 289 Wis. 2d 206, ¶¶13, 16.                            In each case, the expert
witness rendered an independent opinion by reviewing data and
notes      from    the    analyst          and    the     expert     testified         as    to    the
                                                   34
                                                                    No.    2009AP3073-CR



general     procedures     for      preparing          and     testing         samples.24
Williams, 253 Wis. 2d 99, ¶25; Barton, 289 Wis. 2d 206, ¶14.
Harding conducted the same type of review and based his opinion
on the same type of records and personal expertise as the expert
witness did in Williams and Barton, and his opinion is similarly
independent.
     ¶56     Harding   reviewed     Kalscheur's        test    results         and    other
relevant     laboratory     records       and     he    testified         as     to       his
independent opinion.         In accordance with Williams and Barton,
Harding's     testimony      did     not        violate       Griep's       right          of
confrontation.         Williams,    253    Wis. 2d       99,    ¶26;      Barton,         289
Wis. 2d 206, ¶20.

                             III.       CONCLUSION
     ¶57     We   conclude       that     Harding's          review       of     Griep's
laboratory    file,     including    the      forensic       test    results         of   an
analyst who was unavailable for trial, to form an independent
opinion to which he testified did not violate Griep's right of
confrontation.         Williams,    253    Wis. 2d       99,    ¶26;      Barton,         289
Wis. 2d 206, ¶20.        Accordingly, we affirm the court of appeals




     24
       In Barton, the expert testified as to both the general
laboratory procedures and, after review of the data and notes,
that the analyst seemed to have followed the general procedures.
Barton, 289 Wis. 2d 206, ¶¶13-14.     Here, Harding stated that
"all indications are that the procedures were followed, the
instrument was operating properly, properly calibrated."    This
statement is within the bounds of an accepted assessment of the
analyst's procedures as in Barton.



                                         35
                                                                No.   2009AP3073-CR



decision    that    affirmed    the    circuit        court's     admission     of
Harding's testimony.
     By    the   Court.—The    decision    of   the    court     of   appeals   is
affirmed.
     ¶58    DAVID T. PROSSER, J., withdrew from participation.




                                      36
                                                                        No.    2009AP3073-CR.ssa


        ¶59       SHIRLEY      S.     ABRAHAMSON,           C.J.      (concurring).           The
United States Supreme Court has not yet defined the contours of
the limitations imposed by the Confrontation Clause on forensic
evidence and expert testimony.                          The fractured decisions of the
Court       in    this      field     may    be    an     omen   of   changes     to   come    in
Confrontation Clause jurisprudence.1
        ¶60       In   the    meantime,          however,    federal     and    state    courts
must determine how the Confrontation Clause applies to forensic
evidence and expert testimony.2                          At present, federal and state

cases       are    all      over    the     map    in    their     attempts    to   apply     the
Court's Confrontation Clause decisions.
        ¶61       As courts develop and apply this evolving body of law,
the     "ultimate           goal"     of     the        Confrontation     Clause       must    be
remembered:            To    ensure       that     the    reliability     of     evidence      is
"assessed in a particular manner," namely "by testing in the



        1
       See, for example, Williams v. Illinois, 132 S. Ct. 2221
(2012), in which four opinions were filed but none received a
majority vote.    "The persistent ambiguities in the Court's
approach are symptomatic of a rule not amenable to sensible
applications." Bullcoming v. New Mexico, 131 S. Ct. 2705, 2726
(2011) (Kennedy, J., dissenting). See also People v. Lopez, 286
P.3d 469, 483 (Cal. 2013) (Liu, J., dissenting) ("Given the
array of possible doctrinal approaches left open by Williams,
one can only surmise that the high court will soon weigh in
again.").
        2
       See State v. Deadwiller, 2013 WI 75, ¶47, 350 Wis. 2d 138,
834 N.W.2d 362 (Abrahamson, C.J., concurring) ("[T]he majority
opinion does not help answer the recurring significant central
constitutional/evidentiary question presented, namely, 'How does
the Confrontation Clause apply to the panoply of crime
laboratory reports and underlying technical statements written
by (or otherwise made by) laboratory technicians?'").


                                                    1
                                                                                 No.    2009AP3073-CR.ssa


crucible of cross-examination."3                              The majority opinion seems to
lose sight of this goal.                       I write separately to bring the goal
of the Confrontation Clause back into focus.
        ¶62    In Crawford v. Washington, 541 U.S. 36, 61 (2004), the
United       States       Supreme        Court       declared            that    the       Confrontation
Clause        bars      the      introduction                 of     out-of-court           testimonial
statements unless the declarant is unavailable for trial and the
declarant has previously been cross-examined by the defendant.
The     application           of        this       fundamental             Confrontation          Clause

principle          in   the      context           of       forensic       evidence         and   expert
testimony has been the subject of much debate and litigation in
state and federal courts.
        ¶63    In Wisconsin, a forensic report regarding a particular
defendant          that     is      created             for        prosecutorial           purposes     is
considered an out-of-court testimonial statement.4                                          It is clear
under       Crawford      that     such        a    report          cannot      be     introduced     into
evidence       without        testimony            from       the    analyst         who    prepared    it

unless       the     analyst       is    unavailable               and    was    previously       cross-
examined by the defendant.
        ¶64    Ambiguity remains regarding the precise circumstances
under which the Confrontation Clause permits the introduction of
substitute expert testimony about forensic test results when the
forensic report itself is not introduced.


        3
            Crawford v. Washington, 541 U.S. 36, 61 (2004).
        4
       State v. Williams, 2002 WI 58, ¶¶48-49, 253 Wis. 2d 99,
644 N.W.2d 919.


                                                        2
                                                             No.   2009AP3073-CR.ssa


      ¶65     In State v. Williams, 2002 WI 58, 153 Wis. 2d 99, 644
N.W.2d 919, this court established that the Confrontation Clause
does not allow the State to call a surrogate expert to the
witness stand simply to have the expert read or summarize a
forensic report authored by someone else.                   The court held that
"one expert cannot act as a mere conduit for the opinion of
another" without violating the defendant's constitutional right
to confront the State's witnesses.5
      ¶66     Similarly, in Bullcoming v. New Mexico, 131 S. Ct.

2705 (2011), in which the certified results of a blood alcohol
test were introduced with testimony from "a scientist who did
not   sign    the    certification     or    perform   or     observe    the   test
reported in the certification," the United States Supreme Court
"bluntly held that such 'surrogate' expert testimony violates
the confrontation right.         The accused's right is to confront the
lab analyst who performed the test, unless the state can show
that [the lab analyst] is unavailable and that [the] defendant

had an opportunity pretrial to cross-examine him."6
      ¶67     In the present case, the State obtained a testimonial
forensic     report    that   concludes     the   defendant's      blood   alcohol
content      was    0.152   percent.        The   analyst    who    prepared    the
forensic report was unavailable for trial.              The analyst had not,




      5
          Id., ¶19.
      6
       7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 802.303, at 142 (3d ed., 2014 Pocket Part).


                                        3
                                                                       No.    2009AP3073-CR.ssa


however, been cross-examined by the defendant previously.                                Thus,
the forensic report itself could not be introduced.
       ¶68     The     State     did    not    introduce         the     forensic     report.
Instead, the State called Patrick Harding, an employee in the
same laboratory in which the forensic analysis was conducted, as
a substitute expert witness to testify in lieu of the analyst
who prepared the report.
       ¶69     Harding had no personal connection with the forensic
report at issue.               He had not observed the defendant's blood

sample       and     had   not   participated           in     its     testing.       Harding
nevertheless testified about the subject matter of the forensic
report and testified that in his opinion, the defendant's blood
alcohol content was 0.152 percent.
       ¶70     The    majority     opinion     distinguishes            the    instant     case
from   prior       United      States    Supreme        Court        cases    in   which    the
Confrontation         Clause     was    held       to   have    been     violated     on    the
ground that the State in the instant case did not introduce an

out-of-court testimonial statement.                      According to the majority
opinion, although Harding's opinion was based on the analyst's
out-of-court testimonial statement, it nevertheless qualifies as
independent.
       ¶71     Crawford does not govern the introduction of testimony
based on an out-of-court testimonial statement; it governs the
introduction of the out-of-court testimonial statement itself.
Thus, the majority opinion reasons, there was no Confrontation
Clause violation in the instant case.



                                               4
                                                                   No.   2009AP3073-CR.ssa


        ¶72    I disagree with the majority opinion's analysis.                        It
is a stretch, in my view, to call Harding's opinion independent.
I conclude that Harding served as a conduit for the opinion of
the analyst who performed the forensic testing at issue.                           In my
opinion,      the   analyst's        out-of-court     testimonial        statement    was
introduced——albeit indirectly——through Harding's testimony.
        ¶73    Under     a     strict       reading    of      Crawford,       Harding's
testimony violated the defendant's Confrontation Clause rights
because       the   analyst     whose    out-of-court        testimonial       statement

Harding       indirectly      introduced      had    not   previously       been   cross-
examined by the defendant.                  I conclude, however, that such a
narrow reading of Crawford and its progeny improperly ignores

the values underlying the Confrontation Clause and the practical
realities the State and the courts face in cases that rely on
forensic      evidence.         It   also    fails    to    take    into    account   the
reliability of forensic evidence and fails to give proper weight
to the goal of enabling the State to prosecute a crime when a

fair trial is possible.
        ¶74    In   my       opinion,    courts       should       search    for    fair,
practical, and workable evidentiary rules and should not deem
the Confrontation Clause violated whenever the prosecution fails
to call to the witness stand all whose testimony may be relevant
to the accuracy of the forensic testing at issue in a particular
case.
        ¶75    Keeping the majority, plurality, and minority writings
of the justices of the United States Supreme Court in Crawford
and its progeny in mind, and seeking the best interpretation of

                                              5
                                                                          No.   2009AP3073-CR.ssa


the law available in light of the authorities binding upon this
court, I conclude that the substitute expert testimony at issue
in the instant case satisfies the Confrontation Clause.
                                              I
       ¶76     I     begin        by     examining            the     majority        opinion's
determination that Harding testified to an independent opinion
and was not merely a conduit for the opinion of the analyst who
performed the forensic testing at issue.7
       ¶77     State       v.     Williams,            2002     WI    58,       ¶¶25-26,        253

Wis. 2d 99, 644 N.W.2d 919, held that an expert witness other
than the analyst who performed the forensic testing at issue can
testify to "an independent expert opinion" without violating the
Confrontation Clause, even when that opinion is based in part
"on    facts       and    data    gathered        by    someone      else."       Whether       the
opinion      provided       by    such    a   substitute            expert      witness    is    an
independent one must be determined on a case-by-case basis.
       ¶78     Independence is a question of degree.                             Williams does

not reveal the precise degree of independent judgment that must
undergird an expert's opinion for a court to characterize the
opinion as independent for Confrontation Clause purposes.
       ¶79     It    is     clear,       however,        that       for    purposes       of    the
Confrontation Clause, a substitute expert witness must do more
than       merely        recite    or     summarize           the     work       of   another.8
Consequently, the fact that the forensic report itself was not


       7
           See majority op., ¶¶3, 46-47, 52, 55-57.
       8
           Williams, 253 Wis. 2d 99, ¶19.


                                                  6
                                                                      No.    2009AP3073-CR.ssa


introduced    in    the     present          case     is    not    dispositive.             "The
question is not whether [the forensic report] is disclosed in
documentary       form,     or        orally   recapitulated           by     a     testifying
expert.       Rather,       the        appropriate         question     is        whether   the
substance of the testimonial materials is shared with the fact-
finder to suggest its truth, without the report's author being
available for cross-examination."9
     ¶80     In the present case, Harding testified that he was
offering an independent opinion.                    Harding's characterization of

his testimony is not binding on the court and is not supported
by the record.
     ¶81     Harding stated at trial that he reviewed the analyst's
"report when it went out and that is the chromatograms and the
paperwork associated with the whole analytical run that [the
analyst] did."
     ¶82     Harding was familiar with the policies and procedures
of the laboratory in which the forensic analysis took place.                                 He

testified    that    all    indications            were     that   standard         laboratory
procedures were followed and that the chromatograph machine was
properly calibrated.
     ¶83     Harding       did        not,     however,        have         any     first-hand
knowledge that the procedures were followed in the present case.
Harding     was    unable        to     testify     about      the     handling        of    the
defendant's       blood     sample        or    the        steps   that       preceded       the
chromatograph machine's analysis of that sample.                             Harding had no

     9
       David H. Kaye et al., The New Wigmore: Expert Evidence,
§ 4.10.2, at 200 (2d ed. 2010).


                                               7
                                                               No.    2009AP3073-CR.ssa


knowledge of the labeling or loading of the defendant's blood
sample and had no knowledge of the sample's appearance or odor
upon    arrival      at    the     laboratory.       Harding     made       no   direct
observations of the sample or its testing.                     Harding could not
testify about whether there was human error in the process of
testing the defendant's blood sample.
       ¶84    In sum, Harding was unable to say whether the blood
sample was received intact or whether the blood alcohol content
testing was performed according to protocol.                         "These are the

kinds of facts that mattered to the Bullcoming Court."10

       ¶85    Harding's only basis for determining the defendant's
blood alcohol content was the analyst's report and supporting
documentation.            Harding    did    not,   and   could       not,   offer     any
different or additional analysis beyond that contained in the
forensic report and attached materials.                  Harding had no greater
connection with the specific forensic testing at issue than any
other qualified forensic analyst from Harding's lab would have

had.
       ¶86    The    documents      and    information   Harding       reviewed     were
not, in my view, sufficient to enable Harding to independently
"understand,         interpret,      and     evaluate    the     [forensic        test]
results."11         I conclude that for purposes of the Confrontation
Clause,      Harding      lacked    sufficient     information        to    provide    an


       10
       Kaye et al., supra note 9, § 4.12.4, at 69 (Cumulative
Supp. 2015).
       11
            Kaye et al., supra note 9, § 4.10.2, at 205.


                                             8
                                                                       No.   2009AP3073-CR.ssa


independent opinion about the defendant's blood alcohol content.
Harding       was,       in    essence,   a   conduit        through     which    the   State
entered       another         analyst's   otherwise       inadmissible        opinion      into
evidence.
        ¶87       My     position    that       Harding       failed     to      provide     an
independent opinion is supported by the United States Supreme
Court's reasoning in Bullcoming v. New Mexico, 131 S. Ct. 2705
(2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
        ¶88       In     Bullcoming,      the       United     States        Supreme    Court

debunked the notion that an analyst who performs a blood alcohol
content test is a "mere scrivener," cross-examination of whom
serves no legitimate purpose.                    Bullcoming makes clear that the
analyst who tested the defendant's blood sample has valuable
information about the test results beyond the information set
forth        in    the    materials       produced      by     the     gas    chromatograph
machine.          Thus, the opportunity to cross-examine the analyst is
important.

        ¶89       The Bullcoming Court explained that "[s]everal steps
are involved in the gas chromatograph process, and human error
can occur at each step."12                 According to the Court, the results
produced by the gas chromatograph process are determined in part
by "past events and human actions," which are not "revealed in




        12
             Bullcoming, 131 S. Ct. at 2711.


                                                9
                                                             No.    2009AP3073-CR.ssa


raw, machine-produced data," and which constitute "me[a]t for
cross-examination."13
      ¶90    In other words, according to the Bullcoming Court, an
analyst's     testifying    and     submitting        to   cross-examination        at
trial are not hollow formalities.              The Court recognized that a
substitute expert witness cannot convey all that the analyst who
performed     the   forensic    testing      knows    or   observed      and   cannot
expose any lapses on the analyst's part.14                    Thus, the analyst
should be subject to confrontation even "if all analysts always

possessed the scientific acumen of Mme. Curie and the veracity
of Mother Theresa."15

      ¶91    Similarly,    Melendez-Diaz       stresses      that    a     substitute
expert witness who testifies based solely on the results of the
gas chromatograph process will have little to no knowledge of
the past events and human actions that helped determine those
results.       As   a   result,    cross-examination         of    the     substitute
expert witness cannot effectively uncover mistakes or misconduct

by   the    analyst,    which     can   render       the   results    of    the    gas
chromatograph process unreliable.
      ¶92    In     Melendez-Diaz,       the     Court       acknowledged         that
"[f]orensic evidence is not uniquely immune from the risk of


      13
       Id. at 2714.     By contrast, the dissent in Bullcoming
emphasized the mechanical nature of the gas chromatograph. See
Bullcoming, 131 S. Ct. at 2724 (Kennedy, J., dissenting).
      14
           Bullcoming, 131 S.Ct. at 2715-16.
      15
       Melendez-Diaz, 557 U.S. 305, 319 n.6 (2009).                         See also
Bullcoming, 131 S. Ct. at 2715.


                                        10
                                                              No.   2009AP3073-CR.ssa


manipulation."16        Mistake or misconduct can influence forensic
test results.17       "A forensic analyst responding to a request from
a     law    enforcement    official     may    feel    pressure——or       have   an
incentive——to alter the evidence in a manner favorable to the
prosecution."18
       ¶93    Harding appears to have recognized the dangers posed
by admitting his testimony in lieu of testimony by the analyst
who    performed     the   forensic     testing   in    question.         On   cross-
examination, defense counsel asked Harding whether the analyst

who tested the defendant's blood sample could have tampered with
the sample had she "had a mind to do it."                     Harding responded:
"[I]f an analyst wanted to do something nefarious, sure, that's
correct, that could happen."            Defense counsel then asked whether
an    analyst's      tampering   with    a    blood    sample    "could    possibly
escape your detection when you review the written reports and
materials."       Harding replied: "Sure."
       ¶94    This colloquy demonstrates the inherent limits to what

an expert can know about gas chromatography testing performed by
someone      else.     Because   of   these    limits,    a     substitute     expert
witness can do little more than summarize the work and parrot


       16
            Melendez-Diaz, 557 U.S. at 318.
       17
       Indeed, according to an amicus brief submitted in the
instant case by the Innocence Network, "[u]nvalidated or
improper forensic science is a leading cause of wrongful
convictions, playing a role in the cases of almost half of the
321 wrongfully convicted people in the United States who have
been exonerated by DNA testing."
       18
            Melendez-Diaz, 557 U.S. at 318.


                                         11
                                                                           No.     2009AP3073-CR.ssa


the findings of the analyst who performed the testing.                                        Harding
was    no    different;         he    summarized          the       work     and     parroted        the
findings of the analyst who performed the forensic testing at
issue.
       ¶95    In sum, a careful reading of case law and of Harding's
testimony reveals that Harding was unable to testify about the
gas chromatograph process at issue other than by relying on, and
disclosing      the    substance           of,     materials            generated       by    another
analyst's use of the gas chromatograph machine.

       ¶96    The    State       called      Harding          as    a   witness        in    order    to
introduce the otherwise inadmissible conclusion of a testimonial
forensic report prepared by someone else.                                    Harding could not
provide      insight           into    the      testing            process       other       than    by
disclosing      the    substance           of      the    report         itself.            Under    the
circumstances of the present case, Harding did not provide an
independent      opinion.            The   values        underlying          the     Confrontation
Clause would be better protected by testimony from, and cross-

examination of, the analyst who prepared the report.
                                                   II
       ¶97    In my view, a defendant's Confrontation Clause rights
must   be    balanced          against       the    practical           reality        that    cross-
examining     the     forensic          analyst         who    performed         the     testing      at
issue will not always be possible or necessary.                                     Courts should
not——and     need     not       under      current       United         States      Supreme     Court
precedent——exclude              forensic         evidence           that      has      indicia        of
reliability         when       the    analyst       who       performed        the      testing       is
unavailable     but        a    substitute         expert          witness    is     available        to

                                                   12
                                                                   No.   2009AP3073-CR.ssa


provide useful and significant information about that evidence
and to submit to cross-examination.19
        ¶98       Thus,    although      I   conclude    that     Harding's       testimony
indirectly introduced an out-of-court testimonial statement made
by an unavailable analyst who had not previously been cross-
examined, and although I conclude that the Confrontation Clause
would        be    better       protected      by    testimony     from,     and     cross-
examination of, the analyst who conducted the forensic testing
at issue, my analysis does not end there.

        ¶99       As Justice Kennedy's dissent in Bullcoming explains,

the     United       States       Supreme      Court    lacks    the     experience       and
familiarity         with       state   trial    processes       necessary    to    make    it
well-suited for the role of a national tribunal for rules of
evidence.20          Accordingly, this court should contribute to the
development          of        evidentiary      rules    that     pay      heed    to     the
constitutional            and     practical     concerns    of     state     courts,      the
State, and defendants.                 The instant case presents the court with

the opportunity to do just that.
        ¶100 When         an     analyst     becomes    unavailable        without      first
submitting to cross-examination by the subject of the analyst's
forensic testing, what happens to the results produced by that


        19
       "Thus, when there is both unavailability and a meaningful
but imperfect substitute for contemporaneous cross-examination,
the Constitution, according to Crawford, does not require
wholesale exclusion. . . .      [N]ecessity ought to permit a
second-best solution." Kaye et al., supra note 9, § 4.12.2, at
66-67 (Cumulative Supp. 2015).
        20
             Bullcoming, 131 S. Ct. at 2727 (Kennedy, J. dissenting).


                                                13
                                                                               No.    2009AP3073-CR.ssa


testing?            If Crawford imposes a rigid, wholesale ban on non-
independent           substitute           expert      testimony          about       forensic        test
results when an unavailable forensic analyst has not previously
been cross-examined, how could the results be introduced?                                               In
short, they could not.
        ¶101 It        seems        to     me,       however,      that     Crawford          does    not
dictate        such     rigidity.                I   reach       this     conclusion          based     on
Crawford itself (which recognizes that the opportunity to cross-
examine a witness at trial is not always possible or necessary21)

and on Crawford's progeny.

        ¶102 The           separate         writings         issued        in        Bullcoming       are
particularly instructive.
        ¶103 Justice          Sotomayor's             concurrence         in    Bullcoming           makes
clear        that    the    Court        "would       face   a    different          question        [than
faced in Bullcoming and prior cases] if asked to determine the
constitutionality              of        allowing      an    expert        witness       to     discuss
others'        testimonial          statements          if   the        testimonial       statements




        21
       Under Crawford, a prior opportunity to cross-examine an
unavailable   witness   provides  a   constitutionally   adequate
alternative to cross-examination of the witness at trial.


                                                      14
                                                                No.      2009AP3073-CR.ssa


were not themselves admitted as evidence."22                       That is the very
question presented in the instant case.23
       ¶104 Justice Sotomayor emphasized that Bullcoming should be
read    narrowly.      Justice      Sotomayor      wrote     that     Bullcoming         and
prior cases would not control future cases in which "the person
testifying is a supervisor, reviewer, or someone else with a
personal, albeit limited, connection to the scientific test at
issue."24
       ¶105 Justice       Sotomayor    did       not    explain        the     level     of

involvement a substitute witness must have with the "scientific
test at issue" to render the witness's testimony permissible
under the Confrontation Clause.                  However, the implication of
Justice     Sotomayor's      Bullcoming          concurrence        is     that     if     a

substitute    expert      witness     testifies        who   has      even    a    limited
connection    to    the   testing     at    issue,     there    might        not   be    any
Confrontation Clause violation:

       [In Bullcoming, the analyst] conceded on cross-
       examination that he played no role in producing the

       22
       Bullcoming,         131   S.        Ct.    at     2722      (Sotomayor,           J.,
concurring).
       23
       Justice Sotomayor discusses Federal Rule of Evidence 703,
explaining that facts and data upon which experts in a given
field would reasonably rely in forming an opinion need not be
admissible in order for an expert opinion based on such facts
and data to be admitted.    There is, however, an argument to be
made that despite Rule 703, evidence that is excluded from trial
on constitutional grounds ought not to be permitted to serve as
part of the basis for an expert's conclusion. See Kaye et al.,
supra note 9, § 4.5, at 158.
       24
       Bullcoming,         131   S.        Ct.    at     2722      (Sotomayor,           J.,
concurring).


                                           15
                                                                   No.    2009AP3073-CR.ssa

      BAC report and did not observe any portion . . . of
      the testing. . . .   It would be a different case if,
      for example, a supervisor who observed an analyst
      conducting a test testified about the result or a
      report about such results.   We need not address what
      degree of involvement is sufficient because here [the
      analyst] had no involvement whatsoever in the relevant
      teat and report.25
      ¶106 The four dissenting justices in Bullcoming objected to
the Bullcoming majority's extension of Melendez-Diaz.                                According
to    the    dissenters,          Melendez-Diaz          does      not        prohibit       the
introduction         of    a      testimonial           forensic     report           when     a
knowledgeable        representative        of      a    laboratory       is    "present       to
testify and to explain the lab's processes and the details of
the   report."26           Nor,      in   the      dissenters'       view,           does    the
Confrontation Clause.
      ¶107 The       dissent      reasons       that     a   blood       alcohol       content
analysis "is mechanically performed by the gas chromatograph,
which may operate . . . after all the laboratory employees leave
for   the        day."27       Under      these        circumstances,          the     dissent

concludes, the introduction of a forensic report along with the
testimony of a knowledgeable laboratory representative who is
available for cross-examination is "fully consistent with the
Confrontation        Clause    and     with    well-established           principles         for
ensuring that criminal trials are conducted in full accord with




      25
           Id.
      26
           Id. at 2723 (Kennedy, J., dissenting).
      27
           Id. at 2724 (Kennedy, J., dissenting).


                                              16
                                                                     No.    2009AP3073-CR.ssa


requirements            of    fairness     and      reliability            and     with     the
confrontation guarantee."28
       ¶108 Keeping these and other post-Crawford writings of the
justices of the United States Supreme Court in mind, and seeking
the best interpretation of the law available in light of the
authorities        binding      upon     this     court,     I       conclude       that    the
substitute         expert     testimony     at     issue     in      the        instant    case
satisfies the Confrontation Clause.
       ¶109 More         specifically,      I     conclude      that       in    the   instant

case, cross-examination of a substitute expert witness who fails
to   provide       an    independent       opinion    constitutes           a     permissible
alternative to cross-examination of the analyst who performed
the forensic testing at issue when the following conditions are
met:
              1.        The analyst is unavailable for cross-examination,
              through no fault of the parties;
              2.        Re-testing is not possible;

              3.        The analyst recorded the forensic test results at
              or    near      the   time    of    testing       in    the       course     of   a
              regularly conducted activity and would be unlikely to
              have       an   independent        memory    of     the      test     performed
              (because, for example, the analyst processed many such
              tests within a short period);




       28
            Id. at 2723 (Kennedy, J., dissenting).


                                             17
                                                               No.    2009AP3073-CR.ssa


             4.   The analyst recorded the results in a way that
             another    expert      in   the    field   could        understand       and
             interpret; and
             5.   The   substitute       expert      witness    is     qualified       to
             discuss    and   interpret        the   original        results    and    is
             subject to cross-examination.
     ¶110 Because these conditions appear to have been met in
the present case, I conclude that Harding's substitute expert
testimony fulfills the minimum requirements of the Confrontation

Clause.     Thus, like the majority opinion, I would allow it.
     ¶111 I note, finally, that in determining that Harding's
testimony is permissible under the Confrontation Clause, I am
cognizant of "the fundamental doctrinal dilemma" underlying the
relationship      between     the    Confrontation       Clause        and     forensic
evidence:

     [T]here   is    a   fundamental    mismatch    between   the
     Confrontation     Clause's   focus    on   the    individual
     testifying    expert   and   the   nature   of    scientific
     knowledge production, which is, more often than not, a
     collective rather than an individual enterprise.
     Science often depends on a certain degree of epistemic
     deference    to    the   conclusions    and   findings    of
     others . . . and scientists are often engaged in
     "distributed cognition" in which [] the knowledge
     relevant to a [particular] question . . . stretches
     across a network of humans and machines. . . . [W]hen
     a witness uses only a modicum of independent judgment
     to evaluate and opine on tests done by others, this
     problem of distributed knowledge and the Confrontation
     Clause rears its head.29
     ¶112 For the reasons set forth, I write separately.

     29
       Kaye et al., supra note 9, § 4.12.11, at 100 (Cumulative
Supp. 2015) (footnotes omitted).


                                         18
                                                     No.   2009AP3073-CR.ssa


     ¶113 I   am   authorized   to    state   that   Justice   ANN   WALSH
BRADLEY joins this opinion.




                                     19
    No.   2009AP3073-CR.ssa




1
