                                  IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


      STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY,
           Maricopa County Attorney, Petitioner/Appellee,

                                     v.

               THE HONORABLE RONALD KARP,
                 Justice of the Peace Pro Tempore,
        WEST MESA JUSTICE COURT, Respondent Judge/Appellee,

            MATTHEW VORIS, Real Party in Interest/Appellant.

                           No. 1 CA-CV 13-0599
                             FILED 10-09-2014



           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000231-001
                    The Honorable Rosa Mroz, Judge

                                AFFIRMED


                                COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Petitioner/Appellee

Jeffrey Mehrens, Attorney at Law, Phoenix
By Jeffrey Mehrens
Counsel for Real Party in Interest/Appellant
                      STATE v. HON. KARP/VORIS
                          Opinion of the Court



                                OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.


H O W E, Judge:

¶1             Real Party in Interest Matthew Voris appeals from the
superior court’s order reversing the justice court’s order precluding the
State’s expert witness from testifying. The parties contest whether an expert
witness may testify as to her own independent opinion when she relies on
facts and data prepared by a non-testifying expert. We hold that the expert
may testify when the basis of her independent opinion are forensic reports
prepared by a non-testifying expert, if the testifying expert reasonably
relied on these facts and data to reach her conclusions. Consequently, we
affirm the superior court’s order.

                FACTS AND PROCEDURAL HISTORY

¶2           As relevant here, Voris was cited for two counts of driving
under the influence of intoxicating liquor (“DUI”) and one count of
exceeding a reasonable and prudent speed. The police drew Voris’s blood,
and a Scottsdale Police Department Crime Lab criminalist, Lynette Kogler,
analyzed the blood using a gas chromatograph (“GC”). Kogler
subsequently moved out of state and left the profession.

¶3            Before trial, the State moved to admit expert testimony of
another criminalist, Jennifer Valdez, a technical leader in the Scottsdale
Police Department Crime Lab. Valdez would testify about her opinion
regarding Voris’s blood alcohol concentration (“BAC”) from the blood
sample tested. Valdez was neither present during Kogler’s analysis of
Voris’s blood sample, nor was she the technical person who reviewed
Kogler’s work. To form her opinion, Valdez reviewed Kogler’s examination
notes and reports, chromatograms from the blood sample Kogler analyzed,
the printouts from the quality control samples, and the summary of quality
assurance for the blood-alcohol sequence that Kogler had performed on
Voris’s blood sample. The State does not seek to admit any of these
documents into evidence.




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                       STATE v. HON. KARP/VORIS
                           Opinion of the Court

¶4            The State argued that pursuant to State v. Joseph, 230 Ariz. 296,
283 P.3d 27 (2012), no Confrontation Clause violation occurs when an expert
renders an independent opinion based on testimonial or non-testimonial
facts and data, which was the situation here. The justice court denied the
State’s motion, concluding that Valdez, acting as a substitute witness, could
not testify because her testimony would violate Voris’s confrontation
rights. The court found that the proposed testimony was testimonial in
nature and that Kogler was unavailable to Voris. Moreover, the court
distinguished Joseph because it involved an autopsy report, not a blood test
report.

¶5            The State timely filed a petition for special action in the
superior court. The court accepted jurisdiction and granted relief to the
State, finding that the Confrontation Clause was not implicated and that
Joseph was “on point and applicable to this case.” Voris timely appealed,
and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) and Arizona
Rule of Procedure for Special Actions 8(a).

                                DISCUSSION

¶6             Voris argues that the superior court abused its discretion in
ruling that the justice court erred because the proposed expert testimony
did not implicate the Confrontation Clause. When a special action initiated
in superior court is appealed, we must conduct a bifurcated review to
consider, first, the superior court’s acceptance or refusal of jurisdiction, and
second, its decision on the merits. Bilagody v. Thorneycroft, 125 Ariz. 88, 92,
607 P.2d 965, 969 (App. 1979). Here, neither party contends that the superior
court abused its discretion in accepting special action jurisdiction. See
Hamilton v. Mun. Court of Mesa, 163 Ariz. 374, 376–77, 788 P.2d 107, 109–10
(App. 1989). Accordingly, we turn to the court’s decision to grant relief. Id.

¶7            In reviewing a superior court decision on the merits, we
determine whether the court abused its discretion in granting or denying
special action relief. Files v. Bernal, 200 Ariz. 64, 65 ¶ 2, 22 P.3d 57, 58 (App.
2001). A court abuses its discretion when the record fails to provide
substantial support for its decision or the court commits an error of law in
reaching the decision. Id. In the present case, the superior court did not
abuse its discretion in reversing the justice court’s order.

¶8           To resolve the issue raised in this case, we must examine the
Arizona Rules of Evidence in light of recent Confrontation Clause
jurisprudence. Under Arizona Rule of Evidence 703:




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                       STATE v. HON. KARP/VORIS
                           Opinion of the Court

       An expert may base an opinion on facts or data in the case that
       the expert has been made aware of or personally observed. If
       experts in the particular field would reasonably rely on those
       kinds of facts or data in forming an opinion on the subject,
       they need not be admissible for the opinion to be admitted.

Although the Arizona Rules of Evidence permit an expert to present an
opinion based on inadmissible information, this evidentiary rule must still
comport with constitutional requirements. See State v. Jessen, 130 Ariz. 1, 7
n.1, 633 P.2d 410, 416 n.1 (1981) (quoting Ariz. R. Evid. 703 cmt.) (“Even if
otherwise inadmissible hearsay underlying an expert opinion is introduced
into evidence, it has ‘only the limited purpose of disclosing the basis for the
opinion.’”); Ariz. R. Evid. 703 cmt. (providing that facts and data reasonably
relied upon by experts in the particular field and that form the basis of an
expert’s opinion are admissible “unless they should be excluded pursuant
to an applicable constitutional provision”).

¶9             The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” The
Confrontation Clause prohibits the admission of an out-of-court statement
of a witness who does not appear at trial if the statement is testimonial,
unless the witness is unavailable and the defendant had a prior opportunity
to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53–54
(2004). The clause reaches “formalized testimonial materials,” such as
depositions, affidavits, and prior testimony, or statements resulting from
“formalized dialogue,” such as custodial interrogation. Michigan v. Bryant,
– U.S. –, 131 S. Ct. 1143, 1167 (2011) (Thomas, J., concurring in judgment)
(quoting Davis v. Washington, 547 U.S. 813, 840 (2006) (Thomas, J.,
concurring in part)); see also State v. Medina, 232 Ariz. 391, 407 ¶ 63, 306 P.3d
48, 64 (2013).

¶10           Since 2004, the Supreme Court has considered Crawford‘s
application in several cases involving forensic reports. Notably, in
Bullcoming v. New Mexico, – U.S. –, 131 S. Ct. 2705, 2710 (2011), the Court
held that blood-alcohol analysis reports were testimonial and that a non-
testifying analyst’s report stating the defendant’s BAC, offered into
evidence through the laboratory supervisor, was erroneously admitted. The
Court reasoned that forensic test results are the product of independent
judgment and “are meant for cross-examination.” Id. at 2714. Thus, cross-
examination of a surrogate witness, even one with supervisory authority
over the non-testifying analyst, was insufficient. Id. at 2714–15. But
Bullcoming “is not a case in which an expert witness was asked for his


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                        STATE v. HON. KARP/VORIS
                            Opinion of the Court

independent opinion about underlying testimonial reports that were not
themselves admitted into evidence,” and the State in that case did not assert
that the surrogate witness offered an “independent, expert opinion.” Id. at
2722 (Sotomayor, J., concurring in part) (emphasis added).

¶11           Most recently, in Williams v. Illinois, – U.S. –, 132 S. Ct. 2221
(2012), a plurality of the Supreme Court upheld the admission of expert
testimony that the defendant’s DNA profile matched a DNA profile
generated by a non-testifying scientist. See id. at 2228–31. Four justices
reasoned that the statements in the profile comparison report were non-
testimonial because, first, the out-of-court statements were related by the
expert solely for the purpose of explaining the assumptions on which the
expert’s opinion relied and were not offered for their truth. Id. at 2240–41.
And second, even if the report had been admitted into evidence, it was not
a testimonial document because it was not prepared for the “primary
purpose of accusing a targeted individual,” which distinguished the report
from the forensic report in Bullcoming. Id. at 2242.

¶12            Arizona courts have addressed similar issues before and after
Williams. In State v. Joseph, the Arizona Supreme Court affirmed its previous
position that testimony of a State’s expert witness based on the expert’s
review of a victim’s autopsy report, which was prepared by another, non-
testifying expert, did not violate the Confrontation Clause. See Joseph, 230
Ariz. at 298 ¶ 8, 283 P.3d at 29; see also State v. Smith, 215 Ariz. 221, 229 ¶ 26,
159 P.3d 531, 539 (2007); State v. Tucker, 215 Ariz. 298, 315 ¶ 62, 160 P.3d 177,
194 (2007). The court reasoned that admitting an expert’s testimony does
not include admitting the underlying hearsay statements when the
testimony reveals the substance of the non-testifying expert’s opinion,
because the underlying facts are used only to show the basis of that opinion
and not to prove their truth. Joseph, 230 Ariz. at 298 ¶ 8, 283 P.3d at 29 (citing
Tucker, 215 Ariz. at 315 ¶ 62, 160 P.3d at 194). The court also noted that the
testifying expert was not acting as a “mere conduit” for the admissibility of
the non-testifying expert’s opinions. Id. at 299 ¶ 22, 283 P.3d at 30. Thus, the
Confrontation Clause was not violated. Id.

¶13          Therefore, an expert may testify to otherwise inadmissible
evidence, including the substance of a non-testifying expert’s analysis, if
such evidence forms the basis of the expert’s opinion and is reasonably
relied upon by experts in the field. Id. at 299 ¶ 12, 283 P.3d at 30 (citing
Smith, 215 Ariz. at 228 ¶ 23, 159 P.3d at 538); see also Williams, 132 S. Ct. at
2228 (“Out-of-court statements that are related by the expert solely for the
purpose of explaining the assumptions on which that opinion rests are not



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                      STATE v. HON. KARP/VORIS
                          Opinion of the Court

offered for their truth and thus fall outside the scope of the Confrontation
Clause.”) (plurality opinion).

¶14            Consequently, when an expert gives an independent opinion,
the expert is the witness whom the defendant has the right to confront. In
such cases, the Confrontation Clause is satisfied if the defendant has the
opportunity to fully cross-examine the expert witness who testifies against
him, allowing the factfinder to understand the basis for the expert’s opinion
and determine whether that opinion should be found credible.

¶15           Here, like in Joseph, the State seeks to admit expert testimony
from Valdez regarding Voris’s BAC, not the documents that form the basis
of her opinion. As such, the documents are used only to show the basis of
her opinion and not to prove their truth. Also, like the autopsy report in
Joseph, the GC notes and reports here are the product of objective,
computer-generated data and do not require subjective analysis. See State v.
Fields, 196 Ariz. 580, 581–82 ¶ 2, 2 P.3d 670, 671–72 (App. 1999) (describing
the gas chromatography method and explaining how the resulting ratios
from the computer-generated graphs reveal concentrations of substances in
the blood). Further, because the notes and reports are used for the sole
purpose of explaining the basis on which Valdez’s opinion rests, they fall
outside the scope of the Confrontation Clause. More importantly, the State
is not offering the documents into evidence; it is offering Valdez’s
independent, expert opinion. At trial, Voris will have the opportunity to
fully cross-examine her, thereby satisfying the Confrontation Clause.

¶16           Finally, also similar to Joseph, Valdez is not merely acting as a
conduit for Kogler’s conclusions. During the hearing for the State’s motion,
Valdez testified about her own skills, knowledge, experience, and training
regarding the GC method for analyzing blood samples. Valdez also
explained the process for generating each of the documents Kogler created
and verified the integrity of all the facts and data—that she independently
reviewed—to reach her conclusion. Consequently, pursuant to Joseph,
Valdez’s testimony that discusses Kogler’s reports and notes as the basis for
her independent opinion is admissible under Rule 703, if Valdez reasonably
relied on these matters in reaching her own conclusion.

¶17           Voris asserts that “[t]he holding in Joseph, however, is limited
to cases where the evidence sought to be introduced through a substitute
expert is non-testimonial.” But Joseph is not as limited as Voris proposes.
The Joseph court stated, “Even if the autopsy report were itself ‘testimonial,’
Dr. Keen did not testify to any of Dr. Kohlmeier’s conclusions. He testified
instead to opinions he formed after reviewing facts and photographs


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                      STATE v. HON. KARP/VORIS
                          Opinion of the Court

contained in [Dr. Kohlmeier’s] report.” Joseph, 230 Ariz. at 298 ¶ 10, 283 P.3d
at 29. Accordingly, the key inquiry is not whether the basis of an expert’s
testimony is testimonial, but rather whether the expert is testifying to the
non-testifying expert’s conclusions or his own. Here, like in Joseph, Valdez
is testifying to her own independent conclusion.

¶18            Our analysis of expert testimony based on forensic reports
prepared by a non-testifying expert is consistent with that of other
jurisdictions. See, e.g., People v. Dungo, 286 P.3d 442, 448–49 (Cal. 2012)
(providing that substitute medical examiner may testify regarding his
“independent opinion” as expert witness when that opinion was based
solely on a review of an autopsy report prepared by non-testifying expert);
State v. Greineder, 984 N.E.2d 804, 815–16 (Mass. 2013) (holding that
defendant’s confrontation rights were not violated by admission of
testimony of DNA expert despite expert’s reliance on the DNA test results
obtained by non-testifying analyst); Jenkins v. State, 102 So.3d 1063, 1069 ¶
17 (Miss. 2012) (holding that defendant’s confrontation rights were not
violated when laboratory supervisor was allowed to testify about a
GC/mass spectroscopy report on defendant’s blood sample and his
conclusion that the substance seized from defendant was cocaine, even
though another analyst performed the test); State v. Ortiz-Zape, 743 S.E.2d
156, 163–64 (N.C. 2013) (holding that admission of crime-lab analyst’s
expert opinion, based on her independent analysis of testing performed by
another analyst in her laboratory of defendant’s blood sample, that
substance tested was cocaine did not violate defendant’s confrontation
rights).

¶19             Further, Voris maintains that if evidence is testimonial, a
substitute analyst’s testimony based on a report prepared solely for the
purpose of litigation violates the Confrontation Clause under Crawford and
its progeny. But the Joseph court specifically distinguished the Crawford line
of decisions by noting that it differed “in two material respects.” First, the
trial court in Joseph did not admit the report into evidence, and second, the
State presented testimony by a witness subject to cross-examination. See
Joseph, 230 Ariz. at 298–99 ¶¶ 9–12, 283 P.3d at 29–30. Here, even if the
reports and notes were testimonial, the two same material differences are
also present. The State is not offering the documents into evidence, and it is




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                   STATE v. HON. KARP/VORIS
                       Opinion of the Court

presenting testimony by a witness subject to cross-examination.
Accordingly, this case is also distinguishable from Crawford.

                          CONCLUSION

¶20        We affirm the superior court’s order.




                              :gsh




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