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                                                           integrity of this document
                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 09:38:44 2016.06.09

Certiorari Denied, May 11, 2016, No. S-1-SC-35851

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-050

Filing Date: March 17, 2016

Docket No. 33,378

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

MARIO CARMONA,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline D. Flores, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellant

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

for Appellee

                                       OPINION

HANISEE, Judge.

{1}    The State appeals the district court’s order suppressing its expert’s opinion that
Defendant’s DNA was contained in samples taken from an alleged victim by a now-deceased
Sexual Assault Nurse Examiner (SANE). We affirm.


                                            1
BACKGROUND

{2}     In 2003, nine-year-old P.W. told her mother that Defendant (whom P.W.’s mother
had invited to stay overnight at her house as a guest) entered P.W.’s bedroom at night and
licked her vagina and anus. P.W.’s mother called the police, who took P.W. and her mother
to St. Joseph’s Hospital (now known as the Women’s hospital) to be examined. P.W. was
examined by Lydia Vandiver (SANE Vandiver), who swabbed P.W. for DNA evidence and
collected her clothing, bedding, and other personal effects.

{3}     Defendant was charged by grand jury indictment with three counts of criminal sexual
contact of a minor (CSCM) in the third degree, in violation of NMSA 1978, § 30-9-13(A)
(2003). After his arrest, Defendant was sent to Colorado to serve the remainder of a sentence
for an unrelated criminal conviction. In 2011, Defendant was released and his prosecution
in New Mexico resumed. On the State’s motion, the district court ordered that Defendant
submit to a buccal swab to facilitate comparison of his DNA to that present in the samples
collected from P.W. eight years earlier by SANE Vandiver.

{4}     In 2013, and with the case still pending, SANE Vandiver died. Defendant moved to
suppress the DNA evidence and a report prepared by the State’s expert witness, Alanna
Williams, comparing the evidence collected by SANE Vandiver with that from Defendant’s
buccal swab. Defendant argued that without SANE Vandiver’s in-court testimony, (1) the
State could not establish a chain of custody for the swabs or the relevance of Ms. Williams’
opinion; and (2) admitting the DNA evidence gathered from P.W.’s body by SANE
Vandiver would violate his right to confront the witnesses against him as guaranteed by the
Sixth Amendment to the United States Constitution.

{5}     At a hearing on Defendant’s motion to suppress, P.W. testified about her physical
examination, during which SANE Vandiver “removed [her] clothing, [then] shook them out
onto a plastic tarp or paper in order to collect any hairs or DNA samples that might be in
there.” When asked about SANE Vandiver’s collection of the DNA evidence, P.W. stated
that she first observed SANE Vandiver remove swabs from labeled glass vials. P.W.
described the swabs as “like Q-tips, but long[.]” SANE Vandiver “swabbed me in various
areas, such as my anus, my vagina, into the crack of my butt and places like that where the
DNA might have been.” When finished, SANE Vandiver “put [the swabs] back in the vial
and screwed them up and [then] put them . . . in a bag, in a manil[]a envelope.” P.W. did not
recall SANE Vandiver swabbing any other areas of her body.

{6}     Constance Monahan, a statewide SANE coordinator and director of the Albuquerque
SANE Collaborative at the time of the alleged assault, also testified. Ms. Monahan knew
SANE Vandiver at the time P.W. was examined in 2003. Ms. Monahan testified that SANE
Vandiver was the clinical coordinator for the Albuquerque SANE program, and a “key nurse
instructor[]” for New Mexico’s statewide SANE training program. Ms. Monahan was also
aware that SANE Vandiver received specialized training for pediatric examinations at Para
Los Niños under the tutelage of Dr. Renee Ornelas, and that SANE Vandiver worked as a

                                             2
contract clinician and attended various seminars on forensic nursing. As well, SANE
Vandiver provided formal SANE training to nurses statewide and personally performed
sexual assault examinations at various hospitals in Albuquerque.

{7}     Regarding the manner by which evidence was collected during a typical sexual
assault examination, Ms. Monahan stated that

        [the SANE] would . . . meet the patient at the clinic, and then there would be
        a general process from—or guidelines, in terms of the questions asked . . .
        [the SANE] then move[s the patient] into an exam room [to] do the evidence
        collection and the medical documentation of injury, and then the discharge.

As to evidence collection kits, and in particular the so-called “fast track kits” used at the time
and employed by SANE Vandiver to examine P.W., Ms. Monahan testified as follows:

                The New Mexico sexual assault evidence kit is a standardized
        packaging and process for evidence collection from sexual assault victims,
        whatever their age. Inside the kit is a series of envelopes and brown bags and
        directions and forms . . . [that are] standardized in New Mexico.

        ....

                The envelopes [in the fast track kit] were preprinted to indicate the
        orifice or the location of the body. . . . The swabs were inside already in the
        envelopes. So when the nurse opened up the kit, she would reach for the
        smaller envelope and inside, the swabs would be there.

        ....

                The primary purpose would be for consistency, to treat all victims,
        patients the same way, and it would be to standardize[] the process, so that
        we were all doing it the same way in New Mexico.

{8}    According to Ms. Monahan, SANE Vandiver performed a third of the total
examinations in any given month at the hospital where the SANE program was based. Ms.
Monahan testified that SANE Vandiver averaged around “[ten] to [twenty] shifts a month”
and within her shifts typically handled anywhere from “ten to fifteen [cases] a month over
the course of two and [one-]half years.”

{9}     Ms. Monahan’s own job duties included acting as the custodian of evidence collected
by SANEs, including SANE Vandiver. It was expected that once a SANE had removed and
utilized swabs, returned them into and sealed the kit, that SANE would next place the kit
inside an empty locker or a locked refrigerator through a slot. That evidence was then
accessible only by Ms. Monahan, who possessed the lone access key. Once a week, Ms.

                                                3
Monahan would collect logs and samples from the locker and refrigerator, place them into
a large duffel bag, and deliver the bag to the Albuquerque Police Department crime
laboratory. Ms. Monahan testified that this process was followed for P.W.’s swabs, and that
she recognized SANE Vandiver’s signature on evidence logs she retrieved. Ms. Monahan
personally delivered the evidence SANE Vandiver collected from P.W. to police
investigators on April 29, 2003.

{10} Additionally, the State proffered testimony of various chain-of-custody witnesses and
of its DNA analyst, Ms. Williams, who would testify that the chain of custody regarding the
swabs she examined indicated that they were those used to collect evidence from P.W. by
SANE Vandiver. Based on a comparison of a profile developed from DNA found on the
swabs and a profile developed from DNA on Defendant’s buccal swab, Ms. Williams would
conclude that Defendant’s DNA was present on the swabs taken from P.W. by SANE
Vandiver. The State further explained that Ms. Williams’ testimony would be based on the
labels affixed to the envelopes containing swabs that SANE Vandiver had used on P.W.

{11} Defendant’s attorney argued that introduction of Ms. Williams’ testimony would
violate the Confrontation Clause because

       the SANE examiner has a tremendous amount of discretion in terms of how
       to conduct the test . . . SANE kits are not medical procedures; it’s evidence
       collection. It’s equivalent to a technician taking picture[s] at a scene or
       collecting bullet casings. . . . And it’s testimonial, because it’s offered for
       prosecution. It’s collected for prosecution, and therefore the credibility and
       motives of the people involved are at issue[.]

{12} On multiple rationales, the district court granted Defendant’s motion to suppress.
First, applying Rule 11-401 NMRA, the district court determined that the DNA evidence was
not relevant. Second, it ruled that the State “failed to establish a reliable chain of custody.”
Third, it concluded that admitting the DNA evidence would violate Defendant’s right to
“confront and cross-examine witnesses[.]” The State appeals.

DISCUSSION

The Confrontation Clause Prohibits the Introduction of a Hearsay Statement When Its
Declarant Is Unavailable to Testify in Person and Its Primary Purpose Is to Establish
or Prove Past Events Potentially Relevant to Later Criminal Prosecution

{13} We review the district court’s determination that evidence is inadmissible under the
Confrontation Clause de novo. State v. Zamarripa, 2009-NMSC-001, ¶ 22, 145 N.M. 402,
199 P.3d 846. To assess whether admission of the DNA evidence collected by SANE
Vandiver or Ms. Williams’ expert testimony would violate the Confrontation Clause, we first
summarize the holding in Crawford v. Washington, 541 U.S. 36 (2004), the seminal United
States Supreme Court case in this area. Second, we explain the “primary purpose” test for

                                               4
determining the scope and application of the Confrontation Clause first set out in Davis v.
Washington, 547 U.S. 813 (2006). Third, we discuss the United States Supreme Court’s
application of the “primary purpose” test in the context of scientific evidence and expert
testimony. Finally, we apply our own Supreme Court’s more recent decision in State v.
Navarette, 2013-NMSC-003, 294 P.3d 435. Our analysis of modern Confrontation Clause
jurisprudence points squarely to the following conclusion: the Confrontation Clause
prohibits the admission of DNA evidence collected by an unavailable SANE and any expert
testimony based thereon when the primary purpose animating the SANE’s collection of such
evidence is to assist in the prosecution of an individual identified at the time of the
collection.

1.     Crawford Eliminated a Reliability-Focused Confrontation Clause Analysis and
       Established a Context-Based Evaluation to Ascertain Whether a Statement
       Amounts to Testimonial Hearsay

{14} The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. Const.
amend. VI. In Ohio v. Roberts, the Supreme Court interpreted the Confrontation Clause to
permit the admission of an unavailable witness’s hearsay statements (assuming other
grounds for admissibility are met) if the statement bears “adequate indicia of reliability.” 448
U.S. 56, 66 (1980) (internal quotation marks omitted), overruled by Crawford, 541 U.S. at
42, 68-69. This interpretation of the Confrontation Clause prevailed until the Court decided
Crawford and adopted a stricter interpretation of the right at stake. 541 U.S. at 68-69.

{15} Crawford observed that the text of the Confrontation Clause illustrates its purpose:
combating the use of ex parte statements against the accused. Id. at 51. That text indicates
the Clause’s limits, as well: it only “applies to ‘witnesses’ against the accused—in other
words, those who ‘bear testimony.’ ” Id. (citation omitted). Crawford inferred that the term
“witness” as used in the Clause applied only to a particular category of witness testimony,
and not to any and every out-of-court statement—in other words, not all hearsay, only
“testimonial hearsay.” Id. at 51, 53. Crawford concluded that the Confrontation Clause
prohibits the introduction of testimonial hearsay unless the accused has had the opportunity
to cross-examine the declarant. Id. at 54.

{16} Crawford also identified “[v]arious formulations of this core class of ‘testimonial’
statements[:]”

       ex parte in-court testimony or its functional equivalent—that is, material
       such as affidavits, custodial examinations, prior testimony that the defendant
       was unable to cross-examine, or similar pretrial statements that declarants
       would reasonably expect to be used prosecutorially, extrajudicial statements
       contained in formalized testimonial materials, such as affidavits, depositions,
       prior testimony, or confessions, [and] statements that were made under
       circumstances which would lead an objective witness reasonably to believe

                                               5
       that the statement would be available for use at a later trial[.]

Id. at 51-52 (alteration, internal quotation marks, and citations omitted). Although the Court
noted that “testimony at a preliminary hearing, before a grand jury, . . . a former trial; [or
statements during] police interrogations” were all sufficient to trigger the Confrontation
Clause, id. at 68, the Court declined to predefine any necessary criteria for determining
whether a given piece of evidence is “testimonial.” See Ohio v. Clark, ___ U.S. ___, ___,
135 S. Ct. 2173, 2179 (2015) (“[O]ur decision in Crawford did not offer an exhaustive
definition of ‘testimonial’ statements.”).

2.     In Davis, the Supreme Court Held That the “Primary Purpose” for Which a
       Statement Is Made Determines Whether It Is Testimonial

{17} In Davis, the Supreme Court returned its attention to the Confrontation Clause, and
articulated a more generalized rule for determining whether a statement constitutes
testimonial hearsay when it does not fall within the “core class” of testimonial statements
set out in Crawford:

       Statements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that the primary
       purpose of the interrogation is to enable police assistance to meet an ongoing
       emergency. They are testimonial when the circumstances objectively indicate
       that there is no such ongoing emergency, and that the primary purpose of the
       interrogation is to establish or prove past events potentially relevant to later
       criminal prosecution.

Davis, 547 U.S. at 822.

{18} Davis applied the “primary purpose” test to separate appeals, one raising a
Confrontation Clause challenge to the transcript of a 911 call made by a domestic violence
victim, the other challenging a “battery affidavit” executed by another victim. Id. at 817-20.
The Court held that a domestic violence victim’s statements to the 911 operator were non-
testimonial because they concerned ongoing events involving a “bona fide physical threat[,]”
not a description of events that had already passed. Id. at 827. “[V]iewed objectively,” the
Court reasoned, the questions asked of the victim by the 911 operator were designed to
solicit answers “necessary to be able to resolve the present emergency, rather than simply
to learn (as in Crawford) what had happened in the past.” Id. (emphasis omitted). By
contrast, the Court found that a “battery affidavit” executed by the victim of domestic
violence was testimonial because it provided a “narrative of past events [that] was delivered
at some remove in time from the danger [the victim] described. And after [the victim]
answered the officer’s questions, he had her execute an affidavit, in order, he testified, ‘to
establish events that have occurred previously.’ ” Id. at 831-32 (alteration and citation
omitted).


                                              6
{19} Davis delineates an important distinction between initial information gathered by law
enforcement that is not necessarily motivated by a desire for later use in a criminal
prosecution, and information gathered once any emergency has been resolved and the police
have turned their attention to collecting evidence for use in a criminal prosecution against
a known criminal perpetrator. When this latter purpose primarily motivates the activities of
law enforcement or other state actors, the future-accused’s right under the Confrontation
Clause to test a hearsay declarant’s testimony during trial is triggered.

3.     The Supreme Court’s Fractured Application of the “Primary Purpose” Test
       When Applied to Scientific Evidence and Expert Testimony Leaves Lower
       Courts With Little Guidance

{20} Even more recently, the Supreme Court applied Davis’s “primary purpose” test to
chemical analysis reports in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and
Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011), and to DNA analysis in
Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). Although the Supreme Court was
more or less unified in its resolution of Crawford and Davis (no justice dissented from either
judgment), the Court was barely able to assemble a majority of justices in Melendez-Diaz
and Bullcoming. And in Williams, the case most directly on point, the Supreme Court was
unable to obtain majority support for any one rationale analyzing the Confrontation Clause
implications of an expert’s reliance on hearsay statements made by an unavailable declarant
in reaching her opinion.

a.     Melendez-Diaz Holds That a Laboratory Certification That Identifies a
       Substance to Be Cocaine Is Testimonial Hearsay

{21} Melendez-Diaz concerned “certificates of analysis” containing sworn statements by
laboratory analysts that substances found in bags seized from the defendant contained
cocaine. 557 U.S. at 308. The Court held that the certificates fell within the core exemplars
of testimonial hearsay identified in Crawford: although “denominated by Massachusetts law
[to be] ‘certificates,’ [they] are quite plainly affidavits: declarations of facts written down
and sworn to by the declarant before an officer authorized to administer oaths. They are
incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing
or proving some fact.’ ” Id. at 310 (alteration and citation omitted) (quoting Crawford, 541
U.S. at 51). The Court also found that the statements failed Davis’s “primary purpose” test:
under the Massachusetts statute providing for the admission of the test results into evidence,
the “sole purpose” of the certificates “was to provide prima facie evidence of the
composition, quality, and the net weight of the analyzed substance[.]” Id. at 311 (internal
quotation marks and citation omitted).

{22} Joined by three colleagues, Justice Kennedy dissented. He maintained that the
majority had “swe[pt] away an accepted rule governing the admission of scientific evidence
. . . based on” Crawford and Davis, “two recent opinions that say nothing about forensic
analysts[.]” Id. at 330 (Kennedy, J., dissenting). Justice Kennedy reasoned that the rule

                                              7
allowing for the admission of scientific analysis without requiring the in-person testimony
of the analyst had historical pedigree, and that by rejecting it the Court had created more
problems than it solved: because so many individuals “play a role in a routine test for the
presence of illegal drugs[,]” he worried that classifying all such evidence as testimonial
under the Confrontation Clause would have the practical effect of preventing the prosecution
from presenting any scientific evidence whatsoever. Id. at 332-33 (Kennedy, J., dissenting).
Justice Kennedy concluded that the Confrontation Clause’s reference to “witnesses against
[the defendant]” limits its application to only lay witnesses “who perceived an event that
gave rise to a personal belief in some aspect of the defendant’s guilt[,]” id. at 344 (Kennedy,
J., dissenting), and that the Confrontation Clause was not intended to include “analysts who
conduct scientific tests far removed from the crime and the defendant.” Id. at 347 (Kennedy,
J., dissenting).

b.      Bullcoming Holds That a Report Analyzing Blood and Certifying Its Alcohol
        Content Is Testimonial Hearsay

{23} In Bullcoming, the state sought to admit a State Laboratory Division (SLD) Report
of Blood Alcohol Analysis. 564 U.S. at ___, 131 S. Ct. at 2710. The report contained a
“certificate of analyst,” which contained various statements by a lab technician who was
unavailable to testify at the defendant’s trial. Id. at ___, 131 S. Ct. at 2710-12. The certificate
of analyst stated that the blood-alcohol concentration (BAC) in the defendant’s blood sample
was 0.21 grams per hundred milliliters. Id. at ___, 131 S. Ct. at 2710. The certificate also
affirmed that the integrity of the sample had not been compromised and that the required
procedures for handling and testing the sample had been followed. Id. at ___, 131 S. Ct. at
2710-11.

{24} Bullcoming ruled the certificate implicated the Confrontation Clause because “[a]
document created solely for an ‘evidentiary purpose,’ . . . made in aid of a police
investigation, ranks as testimonial.” Id. at ___, 131 S. Ct. at 2717 (citing Melendez-Diaz, 557
U.S. at 311). Even though the certificate of analyst was unsworn, the laboratory analyst was
required by statute to prepare the report when provided with a sample by law enforcement,
certify the results of the test on a document, and further formalize the document by signing
it on a form that makes reference to magistrate and municipal court rules for admitting the
report into evidence. Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2717. The Supreme Court
further noted that operation of the gas chromatograph testing machine “requires specialized
knowledge and training. Several steps are involved in the gas chromatograph process, and
human error can occur at each step.” Id. at ___, 131 S. Ct. at 2711. These formalities and the
amount of human discretion involved in the creation of the certificate, the Supreme Court
concluded, were “more than adequate to qualify [the analyst’s] assertions [in the certificate]
as testimonial.” Id. at 2717; see also State v. Huettl, 2013-NMCA-038, ¶ 37, 305 P.3d 956
(“What has emerged as clearly impermissible is an expert’s testimony which is based solely
upon a non-testifying analyst’s analysis and conclusions.” (citing Bullcoming, 564 U.S. at
___, 131 S. Ct. at 2717-18)).


                                                8
{25} Again writing on behalf of the dissenting justices as in Melendez-Diaz, Justice
Kennedy denounced as a “hollow formality” the requirement that the technician who
prepared the BAC report testify regarding “routine authentication elements for a report that
would be assessed and explained by in-court testimony subject to full cross-examination”
of the witness who had knowledge of the processes for authenticating the samples.
Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2723-24 (Kennedy, J., dissenting).

c.     Williams Upholds the Admission of an Expert’s Opinion That the Defendant’s
       DNA Was Found on Swabs Taken From the Victim, But Does Not Offer a
       Controlling Rationale in Support of Its Holding

{26} In Williams, 567 U.S. ___, 132 S. Ct. 2221, the Supreme Court applied the
Confrontation Clause to the admission of expert scientific testimony based on hearsay. The
victim in Williams had been kidnapped and raped by an unknown assailant and was taken
to a hospital. Id. at ___, 132 S. Ct. at 2229. There, doctors treated the victim’s wounds and
took a blood sample and vaginal swabs, sealed the swabs, and submitted them to a crime lab
for testing. Id. At the crime lab, a technician performed a chemical test on the swabs,
confirmed the presence of semen, resealed the kit, and placed it in a secure freezer. Id. Police
then sent the swabs from the victim to Cellmark Diagnostics Laboratory (Cellmark), which
contracted with the state to perform DNA testing. Id. Cellmark tested the swabs and returned
a report to the police containing a male DNA profile derived from semen found on the
swabs. Id. The police matched the profile produced by Cellmark with an earlier profile
derived from a sample taken as a result of the defendant’s arrest years before. Id. The victim
identified the defendant as her assailant during a lineup, and the state charged the defendant
with rape, kidnapping, and aggravated robbery. Id.

{27} The state did not call as witnesses the technicians at Cellmark who had actually
developed a DNA profile from the samples collected from the victim’s swabs. Id. Instead,
the state called the forensic scientist who had used a chemical test to confirm the presence
of semen on the vaginal swabs taken from the victim, a forensic analyst who had developed
a DNA profile from the blood sample taken from the defendant when he was arrested in
2000, and a third expert who had compared this DNA profile with the profile created by
Cellmark. Id. The third expert testified that the Cellmark profile matched the profile
generated from the sample taken in 2000, stating both that it was common within the
scientific community for experts to rely on records generated by other DNA experts, and that
she and other experts in her field regularly relied on shipping manifests and other labels in
assuming that the DNA evidence they analyzed was authentic. Id. at ___, 132 S. Ct. at 2230.

{28} The defendant challenged the admission of the expert’s comparison of the two
samples, arguing that the expert’s reliance on testing performed by Cellmark’s employees
(who did not testify) violated the Confrontation Clause. Id. The state responded that the
defendant’s right was not violated because Defendant had an opportunity to cross-examine
the analyst who had developed a profile from the 2000 sample and the analyst who had
compared the results of the 2000 sample with the Cellmark profile. Id. at ___, 132 S. Ct. at

                                               9
2231. The state also argued that under Rule 703 of the Federal Rules of Evidence, “an expert
is allowed to disclose the facts on which the expert’s opinion is based even if the expert is
not competent to testify to those underlying facts.” Id. at ___, 132 S. Ct. at 2231. The
prosecutor concluded that “any deficiency in the foundation for the expert’s opinion doesn’t
go to the admissibility of that testimony, but instead goes to the weight of the testimony. ”
Id. (alterations, internal quotation marks, and citation omitted). The trial court agreed and
overruled the defendant’s objection to the expert’s comparison of the two DNA profiles. Id.

{29} Williams rejected the defendant’s arguments in a split opinion with no controlling
rationale. A plurality of four justices—the same four who dissented in Melendez-Diaz and
Bullcoming—would have held that the expert’s testimony was not hearsay (and therefore not
subject to scrutiny under the Confrontation Clause) because it was not offered for the truth
of the matter asserted. Id. at ___, 132 S. Ct. at 2236-41 (plurality opinion). This plurality
reasoned as follows:

       [The] expert witness referred to the report not to prove the truth of the matter
       asserted in the report, i.e., that the report contained an accurate profile of the
       perpetrator’s DNA, but only to establish that the report contained a DNA
       profile that matched the DNA profile deduced from petitioner’s blood. Thus
       . . . the report was not to be considered for its truth but only for the distinctive
       and limited purpose of seeing whether it matched something else. The
       relevance of the match was then established by independent circumstantial
       evidence showing that the . . . report was based on a forensic sample taken
       from the scene of the crime.

Id. at ___, 132 S. Ct. at 2240-41 (internal quotation marks and citation omitted).

{30} In the alternative, the plurality concluded that the defendant’s Confrontation Clause
right was not violated even if the Cellmark DNA analysis had been admitted into evidence
to prove that the Defendant’s DNA had been found in vaginal swabs from the victim because
the analysis “plainly was not prepared for the primary purpose of accusing a targeted
individual.” Id. at ___, 132 S. Ct. at 2243 (plurality opinion). The plurality identified two
non-testimonial purposes behind the DNA evidence: (1) “catch[ing] a dangerous rapist who
was still at large”; and (2) because the DNA analysis is divided among numerous
technicians, “it is likely that the sole purpose of each technician is simply to perform his or
her task in accordance with accepted procedures[,]” not accusing the defendant of
wrongdoing. Id. at ___, 132 S. Ct. at 2243-44. The plurality also identified three factors that
minimized any likelihood that the evidence had been fabricated: First, the plurality noted that
“no one at Cellmark could have possibly known that the profile that it produced would turn
out to inculpate [the defendant]—or for that matter, anyone else whose DNA profile was in
a law enforcement database.” Id. Second, it is possible to detect whether the DNA sample
used by Cellmark had been degraded based on the profile itself; it was not necessary to
conduct an independent examination of the DNA swabs themselves. Id. at ___, 132 S. Ct.
at 2244. Third,

                                               10
       [a]t the time of the testing, [the defendant] had not yet been identified as a
       suspect, and there is no suggestion that anyone at Cellmark had a sample of
       his DNA to swap in by malice or mistake. And given the complexity of the
       DNA molecule, it is inconceivable that shoddy lab work would somehow
       produce a DNA profile that just so happened to have the precise genetic
       makeup of [the defendant], who just so happened to be picked out of a lineup
       by the victim. The prospect is beyond fanciful.

Id. at ___, 132 S. Ct. at 2244 (emphasis added).

{31} Unlike in Melendez-Diaz and Bullcoming, Justice Thomas concurred with the
previously dissenting justices and thereby provided the controlling fifth vote to affirm the
Illinois Supreme Court’s judgment upholding Defendant’s conviction. He disagreed with the
plurality’s first conclusion that the Cellmark report was not hearsay. Id. at ___, 132 S. Ct.
at 2256 (Thomas, J., concurring in judgment). Justice Thomas wrote that “statements
introduced to explain the basis of an expert’s opinion are not introduced for a plausible
nonhearsay purpose.” Id. at ___, 132 S. Ct. at 2257 (Thomas, J., concurring in judgment).
He reasoned that

       [t]o use the inadmissible information in evaluating the expert’s testimony, the
       jury must make a preliminary judgment about whether this information is
       true. If the jury believes that the basis evidence is true, it will likely also
       believe that the expert’s reliance is justified; inversely, if the jury doubts the
       accuracy or validity of the basis evidence, it will be skeptical of the expert’s
       conclusions.

Id. (internal quotation marks and citations omitted).

{32} Justice Thomas concluded that the Cellmark report implicated the Confrontation
Clause—i.e., it was hearsay—because the state’s expert’s opinion was entirely reliant on
assertions in the Cellmark report that “the profile [Cellmark] reported was in fact derived
from [the victim’s] swabs, rather than from some other source.” Id. at ___, 132 S. Ct. at
2258 (Thomas, J., concurring in judgment). Justice Thomas nonetheless concurred in the
result, because in his view “[t]he Cellmark report lacks the solemnity of an affidavit or
deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the
report attest that its statements accurately reflect the DNA testing processes used or the
results obtained.” Id. at ___, 132 S. Ct. at 2260 (Thomas, J., concurring in judgment).

{33} The four-justice dissent—comprised of the Melendez-Diaz and Bullcoming majority
but without Justice Thomas—would have held the Cellmark report to be testimonial because
it was “identical to the [blood sample report] in Bullcoming (and [the drug content test in]
Melendez-Diaz) in all material respects.” Id. at ___, 132 S. Ct. at 2266 (Kagan, J.,
dissenting) (internal quotation marks and citation omitted). The dissent argued that the
Cellmark report was “made to establish some fact in a criminal proceeding—here, the

                                              11
identity of [the victim’s] attacker.” Id. (internal quotation marks and citation omitted). The
dissent similarly reasoned that, like the gas chromatographical test for blood alcohol content
in Bullcoming, “the Cellmark analysis has a comparable title; similarly describes the relevant
samples, test methodology, and results; and likewise includes the signatures of laboratory
officials.” Id. at ___, 132 S. Ct. at 2266-67 (Kagan, J., dissenting).

{34} Amplifying the ideological split in Confrontation Clause analyses generated post-
Crawford regarding scientific evidence, the plurality charged that the dissent would have no
qualms with the prosecutor asking its expert whether “there [was] a computer match
generated of the male DNA profile produced by Cellmark to a male DNA profile that had
been identified as having originated from [the defendant.]” Id. at ___, 132 S. Ct. at 2236
(plurality opinion) (emphasis omitted); see also id. at ___, 132 S. Ct. at 2267 (Kagan, J.,
dissenting). But because the prosecutor had instead asked the expert whether “there [was]
a computer match generated of the male DNA profile found in semen from the vaginal swabs
of [the victim] to a male DNA profile that had been identified as having originated from [the
defendant],” the dissent concluded that admitting the state’s expert witness’s testimony
violated the defendant’s Confrontation Clause right. Id. at ___, 132 S. Ct. at 2236 (plurality
opinion) (emphasis omitted); id. at ___, 132 S. Ct. at 2267 (Kagan, J., dissenting).

4.      Under Bullcoming and Our Supreme Court’s Controlling Interpretation of
        Williams, SANE Vandiver’s Absence Requires the Exclusion of Ms. Williams’
        Expert Opinion That Defendant’s DNA Was Found on Swabs Taken From P.W.

{35} In Navarette, our Supreme Court read Williams to stand for (among others) the
following propositions: (1) “that a statement can only be testimonial if the declarant made
the statement primarily intending to establish some fact with the understanding that the
statement may be used in a criminal prosecution[,]” id. ¶ 8; (2) “even if a statement . . . does
not target a specific individual, the statement may still be testimonial[,]” 2013-NMSC-003,
¶ 10; and (3) “an out-of-court statement that is disclosed to the fact-finder as the basis for
an expert’s opinion is offered for the truth of the matter asserted[,]” id. ¶ 13, and is therefore
subject to exclusion if its primary purpose is testimonial.

{36} Navarette answered whether the Confrontation Clause “preclude[s] a forensic
pathologist from relating subjective observations recorded in an autopsy report as a basis for
the pathologist’s trial opinions, when the pathologist neither participated in nor observed the
autopsy performed on the decedent.” Id. ¶ 1. Our Supreme Court held that the statements
were subject to exclusion because the autopsy was performed as part of a homicide
investigation and the pathologist who had performed the autopsy had a statutory duty to
report possible deaths by homicide to law enforcement. Id. ¶¶ 15-17. The Court reasoned
that “the medical examiner’s findings as to the cause of death and as to soot, stippling, and
gunpowder all went to the issues of whether [the victim’s] death was a homicide and, if so,
who shot him. These issues reflected directly on [the defendant’s] guilt or innocence.” Id.
¶ 17.


                                               12
{37} Here, the basis for Ms. Williams’ opinion that Defendant’s DNA was found on
P.W.’s body is SANE Vandiver’s hearsay statements that the swabs came from P.W. As our
Supreme Court noted, such “basis” evidence amounts to the admission of out-of-court
statements to prove the truth of the matter they assert (i.e., to prove that the DNA was found
on P.W.’s body) and therefore must be subjected to Confrontation Clause scrutiny. See id.
¶ 13. We are not persuaded by the State’s argument that Ms. Williams relied on the swabs
themselves, not SANE Vandiver’s statements on the envelopes containing the swabs. Had
Ms. Williams testified that she had found Defendant’s DNA on swabs (and did not disclose
that the swabs were taken from P.W.), her testimony would be irrelevant because it would
not make it any more or less probable that Defendant had in fact touched P.W. See Rule 11-
401(A) (“Evidence is relevant if it . . . has any tendency to make a fact more or less probable
than it would be without the evidence[.]”). It is Ms. Williams’ reliance on the statements
identifying P.W. as the source of the swabs that supplies relevance to Ms. Williams’ expert
testimony. Without SANE Vandiver’s statements linking the swabs Ms. Williams tested to
the examination of P.W. (and the portions of P.W.’s body on which a swab was used), Ms.
Williams’ testimony would be that Defendant’s DNA was found on various swabs of
unknown origin.

{38} The context of SANE Vandiver’s examination of P.W. leaves no doubt that the
statements were made with the primary purpose of establishing a fact—that Defendant’s
DNA was found on P.W.—for use in a future criminal proceeding against Defendant. See
Navarette, 2013-NMSC-003, ¶ 8 (“[A] statement can only be testimonial if the declarant
made the statement primarily intending to establish some fact with the understanding that
the statement may be used in a criminal prosecution.”) First, P.W. had already identified
Defendant as the one who touched her inappropriately before she was examined by SANE
Vandiver, so it cannot be argued that the swabs were used in order to identify and apprehend
P.W.’s unknown, dangerous assailant. Second, because P.W. was not in need of emergency
medical treatment, there is no basis to conclude that the swabs were taken in “surrounding
circumstances” that suggest a nontestimonial primary purpose. See State v. Mendez, 2010-
NMSC-044, ¶¶ 37-39, 148 N.M. 761, 242 P.3d 328 (holding that a hearsay statement made
to a SANE by a victim who testifies at trial is admissible under Rule 11-803(4) NMRA
based upon the statement’s medical purpose despite the otherwise primarily testimonial
purpose of a SANE examination). Third, as Ms. Monahan testified, the “primary purpose”
of the SANE kits was to create reliable, consistent DNA evidence for testing and use in
future criminal prosecutions. As was the case with the medical examiner in Navarette, SANE
Vandiver would have reasonably expected that her collection of swabs from P.W. and her
placement of those swabs in envelopes labeled “vagina,” and “anus,” all go to the issue of
whether Defendant improperly touched P.W., and therefore “reflect[] directly on
[Defendant’s] guilt or innocence.” 2013-NMSC-003, ¶ 17.

{39} In recently addressing nearly identical circumstances in Commonwealth v. Jones, 37
N.E.3d 589 (Mass. 2015), the Supreme Judicial Court of Massachusetts was asked whether
the Confrontation Clause permitted “the [c]ommonwealth to introduce, through the
testimony of an expert witness who was not present when the victim’s ‘rape kit’ examination

                                              13
was performed, evidence concerning how the various swabs that the expert tested were
collected.” Id. at 592. Jones, like this case, involved allegations that the defendant had
touched the alleged victim’s genitals. Id. at 594. And as is the case here, the commonwealth
in Jones sought to prove the defendant’s guilt by offering expert opinion testimony that the
defendant’s DNA was found in the area surrounding the alleged victim’s genitals. Id.
Finally, like the State here, the commonwealth in Jones did not offer at trial the testimony
of the nurse who personally examined the alleged victim. Id. at 595. Rather, the trial court
“permitted the [c]ommonwealth’s first expert witness, who was not present during the
examination . . . to testify to her ‘understanding’ of how the three swabs had been collected.”
Id. Like Ms. Williams here, the commonwealth’s expert’s “understanding” of how the three
swabs were collected was “based . . . on information the expert learned from the ‘evidence
collection inventory list’ purportedly completed by the nurse who conducted the ‘rape kit’
examination.” Id.

{40} Citing the same Supreme Court authority our Supreme Court in Navarette applied
and we apply today, compare Navarette, 2013-NMSC-003, ¶¶ 7-21, with Jones, 37 N.E.3d
at 596, 600, the Jones court found that the defendant’s Confrontation Clause rights were
violated because the statements identifying various swabs and the inventory list affixed to
the “rape kit” were in essence “a series of factual statements concerning how the various
swabs were collected.” Jones, 37 N.E.3d at 596. The court reasoned that these statements
were “plainly testimonial” because “ ‘a reasonable person in the speaker’s position would
anticipate his findings and conclusions being used against the accused in investigating and
prosecuting a crime[.]’ ” Id. at 597 (alterations omitted) (quoting Clark, ___U.S. at ___, 135
S. Ct. at 2181). Applying both the United States and our Supreme Court’s controlling
interpretations of the Confrontation Clause, the same logic applies in this case with equal
force. SANE Vandiver’s statements on the labels affixed to the kit are testimonial hearsay
because SANE Vandiver would have reasonably understood those statements’ sole purpose
to be for use in investigating and prosecuting criminal charges against Defendant. Allowing
Ms. Williams to testify that Defendant’s DNA had been found on P.W. based on inferences
from labels on the examination kit prepared by SANE Vandiver “would be akin to allowing
a chemist to testify to the chemist’s ‘understanding,’ based on information relayed to the
chemist in a report drafted by nontestifying police officers, that a substance later determined
to be cocaine had been found in the defendant’s trouser pocket.” Jones, 37 N.E.3d at 598.

{41} In support of its argument that introduction of Ms. Williams’ expert testimony would
not violate the Confrontation Clause, the State cites Fencher v. State, 931 So. 2d 184, 186-87
(Fla. Dist. Ct. App. 2006), which held that the admission of an expert’s analysis of DNA
found on a rape kit collected by an unavailable SANE nurse did not violate the defendant’s
Confrontation Clause right. But Fencher was decided before the Supreme Court had
considered the Confrontation Clause implications of scientific evidence and expert testimony
in Melendez-Diaz, Bullcoming, and Williams. Moreover, Fencher’s holding is based on the
rationale that the SANE nurse “merely procured the samples[;]” while others secured a chain
of custody and provided the basis for the expert’s conclusion that Defendant’s DNA was
found on the victim. 931 So. 2d at 187. Bullcoming expressly rejects this rationale; the

                                              14
SANE nurse who collects samples, like a police officer who notes the speed of a car using
a radar gun or a technician who operates a gas chromatograph machine, is not a “mere
scrivener.” 564 U.S. at ___, 131 S. Ct. at 2714.

CONCLUSION

{42} The relevance and admissibility of Ms. Williams’ expert testimony that Defendant’s
DNA was found on P.W. is based entirely on her reliance on testimonial hearsay identifying
P.W., and locations of her body, as the source of evidence collected upon the swabs Ms.
Williams later tested. Because the declarant of those statements—SANE Vandiver—is
unavailable to testify, allowing Ms. Williams to offer her opinion to the jury would violate
Defendant’s rights under the Confrontation Clause of the Sixth Amendment. We therefore
affirm the district court’s order granting Defendant’s motion to suppress evidence. The case
is remanded to the district court for further proceedings.

{43}   IT IS SO ORDERED.

                                             ____________________________________
                                             J. MILES HANISEE, Judge

WE CONCUR:

___________________________________
JAMES J. WECHSLER, Judge

___________________________________
LINDA M. VANZI, Judge




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