 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                           NO. 30,242

10 DEANNA LUJAN,

11          Defendant-Appellee,

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Michael E. Vigil, District Judge

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

16 for Appellant

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellant Defender
19 Santa Fe, NM

20 for Appellee

21                                 MEMORANDUM OPINION

22 FRY, Chief Judge.

23          The State appeals the district court’s order excluding evidence and dismissing

24 a case against Defendant Deanna Lujan, pursuant to NMSA 1978, § 39-3-3(B)(2)
 1 (1972). We issued a calendar notice proposing to reverse the district court’s order.

 2 Defendant filed a memorandum in opposition, which we have duly considered.

 3 Remaining unpersuaded, we reverse.

 4 DISCUSSION

 5        The district court granted Defendant’s motion to exclude evidence because the

 6 State’s expert witness was not the analyst who performed the blood tests in

 7 Defendant’s case. [RP 130] Relying on Melendez-Diaz v. Massachusetts, 129 S. Ct.

 8 2527 (2009), the district court ruled that the blood test results were not admissible

 9 unless the analyst who performed the tests was available for cross-examination. [RP

10 130]

11        The New Mexico Supreme Court recently decided two cases relevant to this

12 appeal. See State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280; State

13 v. Bullcoming, 2010-NMSC-007, 147 N.M. 487, 226 P.3d 1. In Aragon and

14 Bullcoming, the Court held that crime laboratory reports are testimonial for purposes

15 of the Confrontation Clause of the Sixth Amendment. See Aragon, 2010-NMSC-008,

16 ¶ 20; Bullcoming, 2010-NMSC-007, ¶ 18. The Court then turned to whether a

17 defendant’s right to confrontation is violated when the State admits the reports

18 through the testimony of an analyst who did not perform the analysis. In Bullcoming,

19 the Court held that a qualified analyst who did not prepare the gas chromatograph


                                             2
 1 analysis of the defendant’s blood sample could testify in that case about the testing

 2 analyst’s results without violating a defendant’s right to confrontation. See 2010-

 3 NMSC-007, ¶ 19 (noting that the analyst simply transcribed the results generated by

 4 the gas chromatograph machine and the use of raw data produced by scientific

 5 instruments does not offend the Confrontation Clause). In contrast, in Aragon, the

 6 Court held that the testing analyst must testify in order to admit a forensic report of

 7 a narcotic substance because determinations of whether a substance is a narcotic and

 8 its degree of purity constitute opinions that require specialized knowledge and skill.

 9 See 2010-NMSC-008, ¶ 30. However, both cases hold that under some circumstances

10 a substitute analyst may proffer his or her own opinion based upon the underlying data

11 under Rule 11-703 NMRA. See Aragon, 2010-NMSC-008, ¶ 33; Bullcoming, 2010-

12 NMSC-007, ¶ 24.

13        Based on the holdings in Bullcoming and Aragon, our calendar notice proposed

14 to reverse the district court’s ruling and remand for further proceedings. [CN 5] As

15 we discussed, the circumstances in this case appear to be similar to those in

16 Bullcoming. [CN 3-5] As in Bullcoming, the blood tests at issue here involve gas

17 chromatograph analysis of a blood sample. [RP 101; DS 3-4] The State sought to

18 introduce the test results and have an expert witness, Dr. Rong-Jen Hwang, testify

19 about the blood test results and the SLD’s methods and procedures. [DS 3-4; RP 106]


                                              3
 1 Dr. Hwang, the chief of the toxicology bureau, did not prepare the toxicology report

 2 that resulted in the finding of several substances in Defendant’s blood, but reviewed

 3 and signed it. [DS 3] Bullcoming held that even though the analyst who prepared the

 4 blood test results was not present to testify, the testing analyst was a mere scrivener

 5 who was not required to interpret the results. See Bullcoming, 2010-NMSC-007, ¶ 19.

 6 Thus, a qualified expert witness who did not prepare the toxicology report might

 7 properly testify about the results without violating the defendant’s right to

 8 confrontation. Id. Under such circumstances, because a qualified expert provided

 9 live, in-court testimony and was available for cross-examination, the defendant’s

10 blood test results could be admitted. Id. ¶ 20. In this case, if the proper foundation

11 is laid under Bullcoming and Aragon for Dr. Hwang to testify, then the district court

12 may have erred in excluding his testimony and the toxicology report based on the

13 Confrontation Clause. [CN 4-5] Based on Bullcoming, we therefore proposed to hold

14 that the district court may have erred in excluding the blood test results and not

15 allowing Dr. Hwang to testify. [CN 5]

16        To the extent that the toxicology reports at issue may have required more

17 interpretation, our calendar notice also questioned whether the district court erred in

18 making a general ruling that the expert witness could not testify. [CN 5-6] Under

19 Aragon, an expert witness who does not perform the tests of a narcotic substance


                                              4
 1 cannot testify about the toxicology report if he or she is simply restating the testifying

 2 analyst’s opinion regarding the content, weight, and purity of a narcotic substance.

 3 See 2010-NMCA-008, ¶¶ 29-30. Doing so would preclude cross-examination and

 4 violate the Confrontation Clause. See id. However, an expert witness can rely on his

 5 or her own analysis of the underlying facts and data that contributed to the testing

 6 analyst’s opinion to arrive at an independent conclusion. Id. In addition, if an expert

 7 expresses such opinion based on the underlying data, the data itself may be admissible

 8 under Rule 11-703 if it is the type of data reasonably relied upon by chemical forensic

 9 experts in forming opinions and its probative value outweighed its prejudicial effect.

10 Id. ¶ 33. In this case, the district court’s ruling does not indicate that the court

11 determined that Dr. Hwang only intended to repeat the testing analyst’s results. We

12 therefore proposed to hold that the district court erred in making a broad ruling that

13 the State’s expert witness could not testify. [CN 5-6]

14        Here, the record indicates that the district court made a general ruling that

15 Defendant’s confrontation rights would be violated because the State’s expert witness

16 was not the blood analyst on Defendant’s case. Although Defendant maintains that

17 the district court properly excluded the evidence under Melendez-Diaz, [MIO 6-7] we

18 remain persuaded based on Bullcoming and Aragon that the district court’s ruling may

19 not have comported with the analysis required by our Supreme Court. In order to


                                               5
1 determine whether the evidence is admissible, the district court must make additional

2 findings consistent with Bullcoming and Aragon.




                                            6
1 CONCLUSION

2       We therefore reverse the district court’s order and remand this case for further

3 proceedings.

4       IT IS SO ORDERED.



5
6                                        CYNTHIA A. FRY, Chief Judge

7 WE CONCUR:



8
9 CELIA FOY CASTILLO, Judge



10
11 RODERICK T. KENNEDY, Judge




                                            7
