October 22, 2019- State of New Mexico v. Donald West, No. A-1-CA-36387

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36387	4
DONALD WEST,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
James Waylon Counts, District Judge	8
Hector H. Balderas, Attorney General	9
Marko D. Hananel, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Santa Fe, NM	14
Steven J. Forsberg, Assistant Appellate Defender	15
Albuquerque, NM	16
for Appellant	17
MEMORANDUM OPINION	18
ATTREP, Judge.	19
{1} 	Defendant Donald West appeals his conviction for felony driving under the	20
influence of intoxicating liquor or drugs (DUI), contrary to NMSA 1978, Section	21
66-8-102 	(2010, 	amended 	2016). 	In 	this 	appeal, 	we 	address 	two 	possible	22
Confrontation Clause violations. The first is raised by Defendant—Defendant argues	23
Court of Appeals of New Mexico
Filed 10/22/2019 11:41 AM

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that his confrontation rights were violated when the district court permitted the	1
State’s expert from the Scientific Laboratory Division (SLD) to testify to the	2
presence of alcohol and drugs in his system, even though the expert did not conduct	3
the laboratory testing. The second is raised by the State—the State concedes that the	4
admission of the SLD toxicology report, which was generated by a non-testifying	5
analyst, was violative of the Confrontation Clause but argues that such error was not	6
fundamental or harmful. We affirm.	7
DISCUSSION	8
{2} 	The Confrontation Clause of the Sixth Amendment of the United States	9
Constitution precludes the admission of evidence at trial of “an out-of-court	10
statement that is both testimonial and offered to prove the truth of the matter asserted	11
. . . unless the declarant is unavailable and the defendant had a prior opportunity to	12
cross-examine the declarant.” State v. Navarette, 2013-NMSC-003, ¶ 7, 294 P.3d	13
435. We review questions of admissibility under the Confrontation Clause de novo.	14
State v. Montoya, 2014-NMSC-032, ¶ 16, 333 P.3d 935.	15
I. 	The Expert’s Testimony About Defendant’s Alcohol and Drug Levels	16
{3} 	The State’s expert testified at trial about the presence of alcohol and drugs in	17
Defendant’s blood sample obtained after his arrest for DUI. Defendant argues that	18
this testimony violated his confrontation rights because the expert did not conduct	19
or observe the actual testing of Defendant’s blood sample. In response, the State	20

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argues that an expert’s opinion testimony based upon her independent review of raw	1
data does not violate the Confrontation Clause. We agree with the State.	2
{4} 	Following the United States Supreme Court’s seminal line of confrontation	3
cases beginning with Crawford v. Washington, 541 U.S. 36 (2004), our courts have	4
made clear that the Confrontation Clause is not offended when “an expert who has	5
analyzed the raw data generated by another analyst and who has formed independent	6
conclusions based upon that analysis . . . testif[ies] as to those conclusions.” State v.	7
Huettl, 2013-NMCA-038, ¶ 36, 305 P.3d 956; see also Navarette, 2013-NMSC-003,	8
¶ 22 (“[A]n expert witness may express an independent opinion regarding his or her	9
interpretation of raw data without offending the Confrontation Clause.”). In this	10
case, Ms. Pamela Gonzales was qualified as the State’s expert in chemical testing,	11
and she gave her opinion about Defendant’s alcohol and drug levels.	12
{5} 	A full examination of Ms. Gonzales’s testimony reveals that she did not	13
merely parrot the conclusions in the SLD toxicology report but instead provided her	14
own independent conclusions based on her review of the underlying raw data. See	15
Huettl, 2013-NMCA-038, ¶¶ 35-37 (observing that expert testimony based on raw	16
data generated by another is permissible so long as the expert testifies to his or her	17
own independently derived opinion, but that expert testimony based solely on a non-	18
testifying analyst’s analysis and conclusions is not permissible). Throughout her	19
testimony, Ms. Gonzales explained that her conclusions about Defendant’s alcohol	20

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and drug levels were based on “raw data” and the “sheets that come out of” the gas	1
chromatograph mass spectrometer (GCMS). Ms. Gonzales testified to checking that	2
“calibrators and controls [met] requirements” and looking for “ions” and “peaks” in	3
the data, pursuant to her training and experience. Based on those facts and data, Ms.	4
Gonzales gave her own opinion as to the alcohol and drug levels in Defendant’s	5
blood sample. Ms. Gonzales’s opinion, independently reached and based on raw	6
data, did not pose a confrontation problem and was “an original product that [could]	7
be tested through cross-examination.” Id. ¶ 34 (internal quotation marks and citation	8
omitted).	9
{6} 	In an attempt to avoid this result, Defendant contends State v. Dorais, 2016-	10
NMCA-049, 370 P.3d 771, controls. Dorais involved the testimony of a SLD	11
supervisor, 	who 	neither 	conducted 	nor 	observed 	the 	laboratory 	testing; 	the	12
supervisor nonetheless testified about the defendant’s blood test results based solely	13
on a review of the non-testifying analyst’s report. Id. ¶ 32. Our Court held that under	14
those circumstances the witness’s testimony, which conveyed the non-testifying	15
analyst’s statements, violated the Confrontation Clause under Bullcoming v. New	16
Mexico, 564 U.S. 647, 673 (2011). 	Dorais, 2016-NMCA-049, ¶ 32. 	Dorais,	17
however, 	is 	inapposite. 	In 	this 	case, 	Ms. 	Gonzales’s 	testimony 	regarding	18
Defendant’s blood alcohol and drug levels was based not on a regurgitation of the	19
SLD toxicology report but instead on her independent expert evaluation of raw data.	20

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See Huettl, 2013-NMCA-038, ¶ 39 (concluding such testimony does not violate the	1
Confrontation Clause).	2
II. 	The Toxicology Report	3
{7} 	The State, in its answer brief, identifies an additional Confrontation Clause	4
issue not raised by Defendant. State’s Exhibit 3 (the SLD toxicology report), which	5
contained Defendant’s blood test results produced by a non-testifying analyst, was	6
admitted into evidence after Ms. Gonzales independently testified to Defendant’s	7
alcohol and drug levels. The State candidly acknowledges this was error. We agree	8
the admission of Exhibit 3 was a Confrontation Clause violation as the report was	9
testimonial and the authoring analyst was not subject to cross-examination. See	10
Melendez-Diaz 	v. Massachusetts, 557 U.S. 305, 311 	(2009) (concluding the	11
Confrontation Clause was violated when the trial court admitted into evidence	12
certificates of non-testifying laboratory analysts stating material seized from the	13
defendant was cocaine). The State, however, argues this error was not preserved, but	14
even if it was, the error was harmless.	15
{8} 	Defendant in reply stays steadfast in his argument that it was Ms. Gonzales’s	16
testimony, not the admission of Exhibit 3, that violated the Confrontation Clause.	17
Defendant simply states, “The answer brief is correct to concede error in the	18
admission of [Exhibit 3], but the testimony of [Ms. Gonzales,] the non-testing (and	19
non-observing) analyst was in itself error.” Defendant does not demonstrate whether	20

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or how he preserved a Confrontation Clause objection with respect to the admission	1
of Exhibit 3, as required by the rules. Rule 12-318(A)(4) NMRA. We will not search	2
the record to determine if an issue was preserved, and, on this ground alone, we may	3
decline further review. See State v. Schaublin, 2015-NMCA-024, ¶ 28, 344 P.3d	4
1074 (declining to consider constitutional argument where the defendant “fail[ed] to	5
demonstrate whether and, if so, how he preserved his constitutional argument in the	6
district court”). And while unpreserved constitutional violations may be reviewed	7
for fundamental error at the appellate court’s discretion, Defendant has not asked us	8
to review this issue for fundamental error or developed any argument why the	9
admission of Exhibit 3 constituted fundamental error. See State v. Lucero, 1999-	10
NMCA-102, ¶ 45, 127 N.M. 672, 986 P.2d 468 (refusing to address arguments that	11
were not made in the district court and when no assertion of fundamental error was	12
made on appeal).	13
{9} 	Finally, even were we to assume this error was preserved, Defendant has	14
failed to address the State’s convincing showing that Exhibit 3 was merely	15
cumulative of other facts in evidence and that its admission did not rise to the level	16
of harmful error. See State v. Tollardo, 2012-NMSC-008, ¶ 43, 275 P.3d 110	17
(“[W]hen reviewing an error’s role in the trial, courts may, depending upon the	18
circumstances of the cases before them, examine the importance of the erroneously	19
admitted evidence in the prosecution’s case, as well as whether the error was	20

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cumulative or instead introduced new facts.” (alterations, internal quotation marks,	1
and citation omitted)). We are under no obligation to make and develop Defendant’s	2
arguments for him, and we decline to address this undeveloped issue further. See	3
State v. Duttle, 2017-NMCA-001, ¶ 15, 387 P.3d 885 (“For this Court to rule on an	4
inadequately briefed constitutional issue would essentially require it to do the work	5
on behalf of [the d]efendant.”); see also State v. Guerra, 2012-NMSC-014, ¶ 21, 278	6
P.3d 1031 (explaining that appellate courts do not review unclear or undeveloped	7
arguments).	8
CONCLUSION	9
{10} 	For the foregoing reasons, we affirm Defendant’s conviction.	10
{11} 	IT IS SO ORDERED.	11
______________________________	12
JENNIFER L. ATTREP, Judge	13
WE CONCUR:	14
___________________________	15
MEGAN P. DUFFY, Judge	16
___________________________	17
BRIANA H. ZAMORA, Judge	18