March 19, 2013 – State v. Vernard Smith, No. 31,265

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	______________
Filing Date: 	March 19, 2013
NO. 31,265
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
VERNARD SMITH,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge
Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
KENNEDY, Chief Judge.
{1} 	This case requires us to determine whether the district court erred in permitting
an analyst from the State’s Scientific Laboratory Division (SLD) to testify at trial via
a video conference as to the conduct and results of a blood test. 	We hold that the
district court did not establish the requisite necessity for allowing video testimony in
lieu of live testimony and, as a result, Defendant’s rights under the Sixth Amendment
to the United States Constitution were violated by the video conference testimony.
The error was not harmless, and we reverse Defendant’s conviction.
I. 	BACKGROUND
{2} 	Vernard Smith (Defendant) was arrested for driving under the influence. His
blood was tested for alcohol. 	An analyst from the SLD tested the blood. 	At
Defendant’s trial, the analyst testified as to the blood test results via two-way video
conference over his objection. The district court found that, to appear in person, the
analyst would have to drive several hours, resulting in the SLD being shorthanded,
and the analyst inconvenienced in her work. Because it perceived no difference in
appearing via two-way video conference and in person, the district court determined
that it would permit the testimony via video conference and denied Defendant’s
objection. 	The jury convicted Defendant of driving while under the influence.

1Although the State asserts that Chung is not entitled to precedential value
because our Supreme Court has granted certiorari, a formal Court of Appeals opinion
has controlling authority in this Court, even when our Supreme Court has granted
certiorari in the case. Arco Materials, Inc. v. State, Taxation & Revenue Dep’t, 118
N.M. 12, 14, 878 P.2d 330, 332 (Ct. App. 1994), rev’d on other grounds by Blaze
Constr. Co. v. Taxation & Revenue Dep’t, 118 N.M. 647, 884 P.2d 803 (1994).
2
Defendant and the State dispute whether there was other evidence of impairment or
intoxication other than the .07 percent test result and, therefore, whether any potential
error was harmless.
II. 	DISCUSSION
{3} 	We review whether Defendant’s right to confront and cross-examine the
witness was violated by the district court de novo. State v. Chung, 2012-NMCA-049,
¶ 10, 290 P.3d 269, cert. granted, 2012-NMCERT-005, 294 P.3d 446. 1 Defendant
also raises issues of prosecutorial misconduct and irrelevant evidence, but as we
reverse based on the Confrontation Clause, we do not need to address his other
arguments.
A. 	Two-Way Video Conference Testimony Violates the Confrontation Clause
Absent a Showing of Necessity
{4} 	The Confrontation Clause is found in the Sixth Amendment to the United States
Constitution and made applicable to the states through the Fourteenth Amendment,
as well as in Article II, Section 14 of the New Mexico Constitution. Both
constitutional provisions guarantee that, “[i]n all criminal prosecutions, the accused

3
shall enjoy the right . . . to be confronted with the witnesses against him[.]” 	U.S.
Const. amend VI.
{5} 	Case law on video testimony recognizes both the difference between virtual and
real testimony and the requirement of substantial necessity when abrogating the right
to face-to-face confrontation. Generally, “the Confrontation Clause guarantees the
defendant a face-to-face meeting with witnesses appearing before the trier of fact.”
Maryland v. Craig, 497 U.S. 836, 844 (1990) (internal quotation marks and citation
omitted). Confrontation requires that the witness be presented in court in such a way
as to fulfill the elements of the Confrontation Clause and, if there is to be a departure
from that standard, any variance be necessary to further an important public policy.
The necessity must be supported by specific findings by the trial court. Coy v. Iowa,
487 U.S. 1012, 1021 (1988).
{6} 	The right to confrontation is not designed just for the criminal defendant, but
for the integrity of a trial.
The combined effect of these elements of confrontation—physical
presence, oath, cross-examination, and observation of demeanor by the
trier of fact—serves the purposes of the Confrontation Clause by
ensuring that evidence admitted against an accused is reliable and subject
to the rigorous adversarial testing that is the norm of Anglo-American
criminal proceedings.

2Historically, those proceedings permit “the accused . . . an opportunity, not
only of testing the recollection and sifting the conscience of the witness, but of
compelling him to stand face[-]to[-]face with the jury in order that they may . . . judge
[him] by his demeanor . . . and . . . manner . . . whether he is worthy of belief.”
Mattox v. United States, 156 U.S. 237, 242-43 (1895).
4
Craig, 497 U.S. at 846.2
{7} 	Although the State maintains that “[l]ive, two-way video-conferencing is
identical in all critical respects to live, in-court testimony and thus satisfies the
Confrontation Clause,” we disagree. Virtual presence created by television falls short
of physical presence in satisfying the elements of confrontation. Harrell v. State, 709
So. 2d. 1364, 1368-69 (Fla. 1998) (declining to find live satellite testimony to be
equivalent to live, face-to-face testimony). 	Virtual confrontations fall short of
constitutional confrontations in that “they do not provide the same truth-inducing
effect.” People v. Buie, 775 N.W.2d 817, 825 (Mich. Ct. App. 2009); Craig, 497 U.S.
at 857. 	Courts applying 	Craig 	to video testimony are less concerned with
differentiating between one- or two-way video than they are in strictly applying a
necessity test to any attempt to supplant live testimony. United States v. Bordeaux,
400 F.3d 548, 554 (8th Cir. 2005) (stating that “two-way systems share with one-way
systems a trait that by itself justifies the application of Craig: the confrontations they
create are virtual, and not real in the sense that a face-to-face confrontation is real”

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(internal quotation marks omitted). 	Contrary to the State’s contention, video
testimony does not itself “satisfy” the requirements of the Sixth Amendment.
{8} 	The State contends that Craig fully resolves this case, but we disagree. Craig
allowed the one-way video testimony of child victims of abuse and stated the method
protected several elements of the Confrontation Clause, such as the oath, cross-
examination, and the trier of fact’s ability to view the witness’s demeanor, while only
lacking the witness’s ability to see the defendant. 	497 U.S. at 852. 	In Craig, the
United States Supreme Court established an allowable exception to the presence
requirement by stating that “our precedents confirm that a defendant’s right to
confront accusatory witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such confrontation is necessary to further
an important public policy and only where the reliability of the testimony is otherwise
assured.” 497 U.S. at 850. In Craig, the important public policy was rooted in the
necessity of protecting the child victims from further physical or psychological harm
and, in light of that interest, the Supreme Court stated that one-way television
testimony was acceptable. Id. at 852. We interpret Craig to require a particularized
showing of necessity in the service of an important public policy before a court may
approve an exception to physical presence. 497 U.S. at 850 (explaining that video
testimony may overcome the requirement of physical confrontation only when it is

6
“necessary to further an important public policy”). 	The question is whether the
district court properly allowed the video testimony following an adequate showing of
necessity.
{9} 	We have declined to define necessity as including convenience. Chung, 2012-
NMCA-049, ¶ 11 (disallowing video testimony for convenience as a Confrontation
Clause violation); State v. Almanza, 2007-NMCA-073, ¶ 12, 141 N.M. 751, 160 P.3d
932 (stating that the use of telephonic testimony violates the Confrontation Clause
when used for mere convenience). In Almanza, we held that the Sixth Amendment’s
right of confrontation requires face-to-face confrontation between the witness and the
defendant with any exceptions to the rule being “narrowly tailored” and allowed in
“only those situations where the exception is necessary to further an important public
policy.” 	2007-NMCA-073, ¶ 8 (internal quotation marks and citation omitted).
Courts define “important public policy” narrowly in cases such as this. 	See
Commonwealth v. Atkinson, 2009 PA Super 239, ¶ 12, 987 A.2d 743 (Pa. Super. Ct.
2009) (stating that, “[i]n addition to child witness cases, there appear to be two
situations in which courts have considered the use of video testimony for adult
witnesses: when a witness is too ill to travel and when a witness is located outside of
the United States”). 	Atkinson held that the efficiency and security concerns upon
which the government based its attempt to have a prisoner testify by video

7
demonstrated insufficient necessity for an exception to the defendant’s confrontation
rights. Id. ¶ 17.
{10} 	Using a similarly high standard in Almanza, we held that the witness’s
convenience or the convenience of his employer are not situations that demonstrate
necessity. 	Almanza, 2007-NMCA-073, ¶ 12. We concluded that a chemist’s busy
schedule and inconvenience to him or his laboratory caused by traveling to testify did
not rise to a consideration of necessity and, thus, did “not satisfy the exceptions to the
Confrontation Clause.” 	Id. ¶ 12; see also Chung, 2012-NMCA-049, ¶ 11. 	A
prosecutor’s purpose of using video conferencing to expedite a hearing is similarly
insufficient. Atkinson, 2009 PA Super 239, ¶ 16; see United States v. Yates, 438 F.3d
1307, 1316 (11th Cir. 2006) (stating that “the prosecutor’s need for the video
conference testimony to make a case and to expeditiously resolve it are not the type
of public policies that are important enough to outweigh the [d]efendant’s rights to
confront their accusers face-to-face”).
{11} 	SLD’s analysts are part of a system that contemplates their testimony as noted
by the United States Supreme Court in Bullcoming v. New Mexico:
[I]n jurisdictions in which it is the acknowledged job of analysts to
testify in court about their test results, the sky has not fallen. State and
municipal laboratories make operational and staffing decisions to
facilitate the analysts’ appearance at trial. 	Prosecutors schedule trial
dates to accommodate the analysts’ availability, and trial courts liberally
grant continuances when unexpected conflicts arise.

8
131 S. Ct. 2705, 2719 (2011) (alterations, internal quotation marks, and citations
omitted). The State asserts that “more than inconvenience” was shown in this case
because the analyst would be absent from her laboratory when it is short-staffed, and
she would have to travel seven hours, but we are not persuaded that this claim rises
to more than inconvenience.
{12} 	Additionally, the district court’s finding of a burden ignores that part of the
witness’s job as a forensic scientist is testifying to her work in court. See David Mills,
Ph.D, Spread Thin: 	SLD Struggles With Shifts in DWI Environment, Scientific
Laboratory Division News, Vol. 7, Issue 1, at 2-3 (Fall/Winter 2010) (detailing the
increased burdens of statewide travel for analysts after the Confrontation Clause-based
decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), noting that
“SLD has [four] individuals who have been trained and are qualified to serve as expert
witnesses in alcohol-related DWI cases and [six] who are qualified as experts in
drug-related DWI/DUID cases”); see also Bullcoming, 131 S. Ct. at 2713 (noting that
SLD analysts qualify as expert witnesses in DWI cases and holding that the analyst
performing the analysis must personally testify under Confrontation Clause analysis).
We conclude that it was error for the district court to permit two-way video testimony
absent requiring an adequate showing of necessity.
B. 	Allowing the Video Conference Testimony Was Not Harmless Error

9
{13} 	“Where . . . a constitutional error has been established, the [s]tate bears the
burden of proving that the error is harmless.” State v. Tollardo, 2012-NMSC-008,
¶ 25, 275 P.3d 110. “[C]ourts should evaluate all of the circumstances surrounding
the error.” 	Id. ¶ 43 (requiring reviewing courts to evaluate error on a case-by-case
basis). In the present case, the analyst provided the only testimony proving that
Defendant had alcohol in his system.
{14} 	The other evidence presented at trial indicates that there is a reasonable
possibility that the blood test result influenced the jury’s decision. A police officer
pulled Defendant over because his registration was expired and, in the process,
observed Defendant swerve slightly, although the officer could not tell if Defendant
had crossed the center line. Defendant did not stumble or seem impaired and spoke
intelligibly when pulled over. The officer testified that Defendant had bloodshot eyes
and slurred speech and admitted to drinking heavily the night before. In light of the
lack of substantial support from the other evidence, there is a reasonable possibility
that the results of Defendant’s blood test influenced the jury’s decision to convict him.
We conclude that the error was not harmless.
III. 	CONCLUSION
{15} 	We hold that the reasons articulated by the district court for finding it necessary
to allow the use of video testimony were insufficient as a matter of law to support its

10
use and, therefore, Defendant’s rights under the Confrontation Clause were violated.
The error was not harmless beyond a reasonable doubt. 	We reverse Defendant’s
conviction and remand the case to the district court for further proceedings consistent
with this Opinion.
{16} 	IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Chief Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
MICHAEL E. VIGIL, Judge