March 17, 2016 – State of New Mexico v. Mario Carmona, No. 33,378

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2\| Opinion Number:

3}| Filing Date: March 17, 2016

4 NO. 33,378

|| STATE OF NEW MEXICO,
6 Plaintiff-A ppellant,
TV.

8] MARIO CARMONA,

9 Defendant- Appellee.

10] APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11} J aoqueline D. Flores, District J udge

12|| Hector H. Balderas, Attomey General
13] Santa Fe, NM
14|| Jacqueline R. Medina, Assistant Attomey General

15] Albuquerque, NM

16] for Appellant

17|| Jorge A. Alvarado, Chief Public Defender
18}| Mary Barket, Assistant Appellate Defender
19]| Santa Fe, NM

20)| for Appellee

OPINION	1
HANISEE, Judge.	2
{1} 	The State appeals the district court’s order suppressing its expert’s opinion that	3
Defendant’s DNA was contained in samples taken from an alleged victim by a now-	4
deceased Sexual Assault Nurse Examiner (SANE). We affirm.	5
BACKGROUND	6
{2} 	In 2003, nine-year-old P.W. told her mother that Defendant (whom P.W.’s	7
mother had invited to stay overnight at her house as a guest) entered P.W.’s bedroom	8
at night and licked her vagina and anus. P.W.’s mother called the police, who took	9
P.W. and her mother to St. Joseph’s Hospital (now known as the Women’s hospital)	10
to be examined. P.W. was examined by Lydia Vandiver (SANE Vandiver), who	11
swabbed P.W. for DNA evidence and collected her clothing, bedding, and other	12
personal effects.	13
{3} 	Defendant was charged by grand jury indictment with three counts of criminal	14
sexual contact of a minor (CSCM) in the third degree, in violation of NMSA 1978, §	15
30-9-13(A) (2003). After his arrest, Defendant was sent to Colorado to serve the	16
remainder of a sentence for an unrelated criminal conviction. In 2011, Defendant was	17
released and his prosecution in New Mexico resumed. On the State’s motion, the	18
district court ordered that Defendant submit to a buccal swab to facilitate comparison	19

2
of his DNA to that present in the samples collected from P.W. eight years earlier by	1
SANE Vandiver.	2
{4} 	In 2013, and with the case still pending, SANE Vandiver died. Defendant	3
moved to suppress the DNA evidence and a report prepared by the State’s expert	4
witness, Alanna Williams, comparing the evidence collected by SANE Vandiver with	5
that from Defendant’s buccal swab. Defendant argued that without SANE Vandiver’s	6
in-court testimony, (1) the State could not establish a chain of custody for the swabs	7
or the relevance of Ms. Williams’ opinion; and (2) admitting the DNA evidence	8
gathered from P.W.’s body by SANE Vandiver would violate his right to confront the	9
witnesses against him as guaranteed by the Sixth Amendment to the United States	10
Constitution.	11
{5} 	At a hearing on Defendant’s motion to suppress, P.W. testified about her	12
physical examination, during which SANE Vandiver “removed [her] clothing, [then]	13
shook them out onto a plastic tarp or paper in order to collect any hairs or DNA	14
samples that might be in there.” When asked about SANE Vandiver’s collection of the	15
DNA evidence, P.W. stated that she first observed SANE Vandiver remove swabs	16
from labeled glass vials. P.W. described the swabs as “like Q-tips, but long[.]” SANE	17
Vandiver “swabbed me in various areas, such as my anus, my vagina, into the crack	18
of my butt and places like that where the DNA might have been.” When finished,	19

3
SANE Vandiver “put [the swabs] back in the vial and screwed them up and [then] put	1
them . . . in a bag, in a manil[]a envelope.” P.W. did not recall SANE Vandiver	2
swabbing any other areas of her body.	3
{6} 	Constance Monahan, a statewide SANE coordinator and director of the	4
Albuquerque SANE Collaborative at the time of the alleged assault, also testified. Ms.	5
Monahan knew SANE Vandiver at the time P.W. was examined in 2003. Ms.	6
Monahan testified that SANE Vandiver was the clinical coordinator for the	7
Albuquerque SANE program, and a “key nurse instructor[]” for New Mexico’s	8
statewide SANE training program. Ms. Monahan was also aware that SANE Vandiver	9
received specialized training for pediatric examinations at Para Los Niños under the	10
tutelage of Dr. Renee Ornelas, and that SANE Vandiver worked as a contract clinician	11
and attended various seminars on forensic nursing. As well, SANE Vandiver provided	12
formal SANE training to nurses statewide and personally performed sexual assault	13
examinations at various hospitals in Albuquerque.	14
{7} 	Regarding the manner by which evidence was collected during a typical sexual	15
assault examination, Ms. Monahan stated that	16
[the SANE] would . . . meet the patient at the clinic, and then there	17
would be a general process from—or guidelines, in terms of the	18
questions asked . . . [the SANE] then move[s the patient] into an exam	19
room [to] do the evidence collection and the medical documentation of	20
injury, and then the discharge.	21

4
As to evidence collection kits, and in particular the so-called “fast track kits” used at	1
the time and employed by SANE Vandiver to examine P.W., Ms. Monahan testified	2
as follows:	3
The New Mexico sexual assault evidence kit is a standardized	4
packaging and process for evidence collection from sexual assault	5
victims, whatever their age. Inside the kit is a series of envelopes and	6
brown bags and directions and forms . . . [that are] standardized in New	7
Mexico.	8
. . . .	9
The envelopes [in the fast track kit] were preprinted to indicate the	10
orifice or the location of the body. . . . The swabs were inside already in	11
the envelopes. So when the nurse opened up the kit, she would reach for	12
the smaller envelope and inside, the swabs would be there.	13
. . . .	14
The primary purpose would be for consistency, to treat all victims,	15
patients the same way, and it would be to standardize[] the process, so	16
that we were all doing it the same way in New Mexico.	17
{8} 	According to Ms. Monahan, SANE Vandiver performed a third of the total	18
examinations in any given month at the hospital where the SANE program was based.	19
Ms. Monahan testified that SANE Vandiver averaged around “[ten] to [twenty] shifts	20
a month” and within her shifts typically handled anywhere from “ten to fifteen [cases]	21
a month over the course of two and [one-]half years.”	22
{9} 	Ms. Monahan’s own job duties included acting as the custodian of evidence	23
collected by SANEs, including SANE Vandiver. It was expected that once a SANE	24

5
had removed and utilized swabs, returned them into and sealed the kit, that SANE	1
would next place the kit inside an empty locker or a locked refrigerator through a slot.	2
That evidence was then accessible only by Ms. Monahan, who possessed the lone	3
access key. Once a week, Ms. Monahan would collect logs and samples from the	4
locker and refrigerator, place them into a large duffel bag, and deliver the bag to the	5
Albuquerque Police Department crime laboratory. Ms. Monahan testified that this	6
process was followed for P.W.’s swabs, and that she recognized SANE Vandiver’s	7
signature on evidence logs she retrieved. Ms. Monahan personally delivered the	8
evidence SANE Vandiver collected from P.W. to police investigators on April 29,	9
2003.	10
{10} 	Additionally, the State proffered testimony of various chain-of-custody	11
witnesses and of its DNA analyst, Ms. Williams, who would testify that the chain of	12
custody regarding the swabs she examined indicated that they were those used to	13
collect evidence from P.W. by SANE Vandiver. Based on a comparison of a profile	14
developed from DNA found on the swabs and a profile developed from DNA on	15
Defendant’s buccal swab, Ms. Williams would conclude that Defendant’s DNA was	16
present on the swabs taken from P.W. by SANE Vandiver. The State further explained	17
that Ms. Williams’ testimony would be based on the labels affixed to the envelopes	18
containing swabs that SANE Vandiver had used on P.W.	19

6
{11} 	Defendant’s attorney argued that introduction of Ms. Williams’ testimony	1
would violate the Confrontation Clause because	2
the SANE examiner has a tremendous amount of discretion in terms of	3
how to conduct the test . . . SANE kits are not medical procedures; it’s	4
evidence collection. It’s equivalent to a technician taking picture[s] at a	5
scene or collecting bullet casings. . . . And it’s testimonial, because it’s	6
offered for prosecution. It’s collected for prosecution, and therefore the	7
credibility and motives of the people involved are at issue[.]	8
{12} 	On multiple rationales, the district court granted Defendant’s motion to	9
suppress. First, applying Rule 11-401 NMRA, the district court determined that the	10
DNA evidence was not relevant. Second, it ruled that the State “failed to establish a	11
reliable chain of custody.” Third, it concluded that admitting the DNA evidence would	12
violate Defendant’s right to “confront and cross-examine witnesses[.]” The State	13
appeals.	14
DISCUSSION	15
The Confrontation Clause Prohibits the Introduction of a Hearsay Statement	16
When Its Declarant Is Unavailable to Testify in Person and Its Primary Purpose	17
Is to Establish or Prove Past Events Potentially Relevant to Later Criminal	18
Prosecution	19
{13} 	We review the district court’s determination that evidence is inadmissible under	20
the Confrontation Clause de novo. State v. Zamarripa, 2009-NMSC-001, ¶ 22, 145	21
N.M. 402, 199 P.3d 846. To assess whether admission of the DNA evidence collected	22
by 	SANE 	Vandiver 	or 	Ms. 	Williams’ 	expert 	testimony 	would 	violate 	the	23

7
Confrontation Clause, we first summarize the holding in Crawford v. Washington, 541	1
U.S. 36 (2004), the seminal United States Supreme Court case in this area. Second,	2
we explain the “primary purpose” test for determining the scope and application of the	3
Confrontation Clause first set out in Davis v. Washington, 547 U.S. 813 (2006). Third,	4
we discuss the United States Supreme Court’s application of the “primary purpose”	5
test in the context of scientific evidence and expert testimony. Finally, we apply our	6
own Supreme Court’s more recent decision in State v. Navarette, 2013-NMSC-003,	7
294 P.3d 435. Our analysis of modern Confrontation Clause jurisprudence points	8
squarely to the following conclusion: the Confrontation Clause prohibits the	9
admission of DNA evidence collected by an unavailable SANE and any expert	10
testimony based thereon when the primary purpose animating the SANE’s collection	11
of such evidence is to assist in the prosecution of an individual identified at the time	12
of the collection.	13
1. 	Crawford Eliminated a Reliability-Focused Confrontation Clause Analysis	14
and Established a Context-Based Evaluation to Ascertain Whether a	15
Statement Amounts to Testimonial Hearsay	16
{14} 	The Confrontation Clause provides that “[i]n all criminal prosecutions, the	17
accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”	18
U.S. Const. amend. VI. In Ohio v. Roberts, the Supreme Court interpreted the	19
Confrontation Clause to permit the admission of an unavailable witness’s hearsay	20

8
statements (assuming other grounds for admissibility are met) if the statement bears	1
“adequate indicia of reliability.” 448 U.S. 56, 66 (1980) (internal quotation marks	2
omitted), overruled by Crawford, 541 U.S. at 42, 68-69. This interpretation of the	3
Confrontation Clause prevailed until the Court decided Crawford and adopted a	4
stricter interpretation of the right at stake. 541 U.S. at 68-69.	5
{15} 	Crawford observed that the text of the Confrontation Clause illustrates its	6
purpose: combating the use of ex parte statements against the accused. Id. at 51. That	7
text indicates the Clause’s limits, as well: it only “applies to ‘witnesses’ against the	8
accused—in other words, those who ‘bear testimony.’ ” Id. (citation omitted).	9
Crawford inferred that the term “witness” as used in the Clause applied only to a	10
particular category of witness testimony, and not to any and every out-of-court	11
statement—in other words, not all hearsay, only “testimonial hearsay.” Id. at 51, 53.	12
Crawford concluded that the Confrontation Clause prohibits the introduction of	13
testimonial hearsay unless the accused has had the opportunity to cross-examine the	14
declarant. Id. at 54.	15
{16} 	Crawford 	also 	identified 	“[v]arious 	formulations 	of 	this 	core 	class 	of	16
‘testimonial’ statements[:]”	17
ex parte in-court testimony or its functional equivalent—that is, material	18
such as affidavits, custodial examinations, prior testimony that the	19
defendant was unable to cross-examine, or similar pretrial statements	20
that declarants would reasonably expect to be used prosecutorially,	21

9
extrajudicial statements contained in formalized testimonial materials,	1
such as affidavits, depositions, prior testimony, or confessions, [and]	2
statements that were made under circumstances which would lead an	3
objective witness reasonably to believe that the statement would be	4
available for use at a later trial[.]	5
Id. at 51-52 (alteration, internal quotation marks, and citations omitted). Although the	6
Court noted that “testimony at a preliminary hearing, before a grand jury, . . . a former	7
trial; [or statements during] police interrogations” were all sufficient to trigger the	8
Confrontation Clause, id. at 68, the Court declined to predefine any necessary criteria	9
for determining whether a given piece of evidence is “testimonial.” See Ohio v. Clark,	10
___ U.S. ___, ___, 135 S. Ct. 2173, 2179 (2015) (“[O]ur decision in Crawford did not	11
offer an exhaustive definition of ‘testimonial’ statements.”).	12
2. 	In Davis, the Supreme Court Held That the “Primary Purpose” for Which	13
a Statement Is Made Determines Whether It Is Testimonial	14
{17} 	In Davis, the Supreme Court returned its attention to the Confrontation Clause,	15
and articulated a more generalized rule for determining whether a statement	16
constitutes testimonial hearsay when it does not fall within the “core class” of	17
testimonial statements set out in Crawford:	18
Statements are nontestimonial when made in the course of police	19
interrogation under circumstances objectively indicating that the primary	20
purpose of the interrogation is to enable police assistance to meet an	21
ongoing emergency. They are testimonial when the circumstances	22
objectively indicate that there is no such ongoing emergency, and that	23
the primary purpose of the interrogation is to establish or prove past	24
events potentially relevant to later criminal prosecution.	25

10
Davis, 547 U.S. at 822.	1
{18} 	Davis applied the “primary purpose” test to separate appeals, one raising a	2
Confrontation Clause challenge to the transcript of a 911 call made by a domestic	3
violence victim, the other challenging a “battery affidavit” executed by another victim.	4
Id. at 817-20. The Court held that a domestic violence victim’s statements to the 911	5
operator were non-testimonial because they concerned ongoing events involving a	6
“bona fide physical threat[,]” not a description of events that had already passed. Id.	7
at 827. “[V]iewed objectively,” the Court reasoned, the questions asked of the victim	8
by the 911 operator were designed to solicit answers “necessary to be able to resolve	9
the present emergency, rather than simply to learn (as in Crawford) what had	10
happened in the past.” Id. (emphasis omitted). By contrast, the Court found that a	11
“battery affidavit” executed by the victim of domestic violence was testimonial	12
because it provided a “narrative of past events [that] was delivered at some remove	13
in time from the danger [the victim] described. And after [the victim] answered the	14
officer’s questions, he had her execute an affidavit, in order, he testified, ‘to establish	15
events that have occurred previously.’ ” Id. at 831-32 (alteration and citation omitted).	16
{19} 	Davis delineates an important distinction between initial information gathered	17
by law enforcement that is not necessarily motivated by a desire for later use in a	18
criminal prosecution, and information gathered once any emergency has been resolved	19

11
and the police have turned their attention to collecting evidence for use in a criminal	1
prosecution against a known criminal perpetrator. When this latter purpose primarily	2
motivates the activities of law enforcement or other state actors, the future-accused’s	3
right under the Confrontation Clause to test a hearsay declarant’s testimony during	4
trial is triggered.	5
3. 	The Supreme Court’s Fractured Application of the “Primary Purpose”	6
Test When Applied to Scientific Evidence and Expert Testimony Leaves	7
Lower Courts With Little Guidance	8
{20} 	Even more recently, the Supreme Court applied Davis’s “primary purpose” test	9
to chemical analysis reports in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)	10
and Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011), and to DNA	11
analysis in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). Although the	12
Supreme Court was more or less unified in its resolution of Crawford and Davis (no	13
justice dissented from either judgment), the Court was barely able to assemble a	14
majority of justices in Melendez-Diaz and Bullcoming. And in Williams, the case most	15
directly on point, the Supreme Court was unable to obtain majority support for any	16
one rationale analyzing the Confrontation Clause implications of an expert’s reliance	17
on hearsay statements made by an unavailable declarant in reaching her opinion.	18
a. 	Melendez-Diaz Holds That a Laboratory Certification That Identifies a	19
Substance to Be Cocaine Is Testimonial Hearsay	20

12
{21} 	Melendez-Diaz concerned “certificates of analysis” containing sworn statements	1
by laboratory analysts that substances found in bags seized from the defendant	2
contained cocaine. 557 U.S. at 308. The Court held that the certificates fell within the	3
core exemplars of testimonial hearsay identified in Crawford: although “denominated	4
by Massachusetts law [to be] ‘certificates,’ [they] are quite plainly affidavits:	5
declarations of facts written down and sworn to by the declarant before an officer	6
authorized to administer oaths. They are incontrovertibly a ‘solemn declaration or	7
affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 310	8
(alteration and citation omitted) (quoting Crawford, 541 U.S. at 51). The Court also	9
found 	that 	the 	statements 	failed 	Davis’s 	“primary 	purpose” 	test: 	under 	the	10
Massachusetts statute providing for the admission of the test results into evidence, the	11
“sole purpose” of the certificates “was to provide prima facie evidence of the	12
composition, quality, and the net weight of the analyzed substance[.]” Id. at 311	13
(internal quotation marks and citation omitted).	14
{22} 	Joined by three colleagues, Justice Kennedy dissented. He maintained that the	15
majority had “swe[pt] away an accepted rule governing the admission of scientific	16
evidence . . . based on” Crawford and Davis, “two recent opinions that say nothing	17
about forensic analysts[.]” Id. at 330 (Kennedy, J., dissenting). Justice Kennedy	18
reasoned that the rule allowing for the admission of scientific analysis without	19

13
requiring the in-person testimony of the analyst had historical pedigree, and that by	1
rejecting it the Court had created more problems than it solved: because so many	2
individuals “play a role in a routine test for the presence of illegal drugs[,]” he worried	3
that classifying all such evidence as testimonial under the Confrontation Clause would	4
have the practical effect of preventing the prosecution from presenting any scientific	5
evidence whatsoever. Id. at 332-33 (Kennedy, J., dissenting). Justice Kennedy	6
concluded that the Confrontation Clause’s reference to “witnesses against [the	7
defendant]” limits its application to only lay witnesses “who perceived an event that	8
gave rise to a personal belief in some aspect of the defendant’s guilt[,]” id. at 344	9
(Kennedy, J., dissenting), and that the Confrontation Clause was not intended to	10
include “analysts who conduct scientific tests far removed from the crime and the	11
defendant.” Id. at 347 (Kennedy, J., dissenting).	12
b. 	Bullcoming Holds That a Report Analyzing Blood and Certifying Its	13
Alcohol Content Is Testimonial Hearsay	14
{23} 	In Bullcoming, the state sought to admit a State Laboratory Division (SLD)	15
Report of Blood Alcohol Analysis. 564 U.S. at ___, 131 S. Ct. at 2710. The report	16
contained a “certificate of analyst,” which contained various statements by a lab	17
technician who was unavailable to testify at the defendant’s trial. Id. at ___, 131 S. Ct.	18
at 2710-12. The certificate of analyst stated that the blood-alcohol concentration	19
(BAC) in the defendant’s blood sample was 0.21 grams per hundred milliliters. Id. at	20

14
___, 131 S. Ct. at 2710. The certificate also affirmed that the integrity of the sample	1
had not been compromised and that the required procedures for handling and testing	2
the sample had been followed. Id. at ___, 131 S. Ct. at 2710-11.	3
{24} 	Bullcoming ruled the certificate implicated the Confrontation Clause because	4
“[a] document created solely for an ‘evidentiary purpose,’ . . . made in aid of a police	5
investigation, ranks as testimonial.” Id. at ___, 131 S. Ct. at 2717 (citing Melendez-	6
Diaz, 557 U.S. at 311). Even though the certificate of analyst was unsworn, the	7
laboratory analyst was required by statute to prepare the report when provided with	8
a sample by law enforcement, certify the results of the test on a document, and further	9
formalize the document by signing it on a form that makes reference to magistrate and	10
municipal court rules for admitting the report into evidence. Bullcoming, 564 U.S. at	11
___, 131 S. Ct. at 2717. The Supreme Court further noted that operation of the gas	12
chromatograph testing machine “requires specialized knowledge and training. Several	13
steps are involved in the gas chromatograph process, and human error can occur at	14
each step.” Id. at ___, 131 S. Ct. at 2711. These formalities and the amount of human	15
discretion involved in the creation of the certificate, the Supreme Court concluded,	16
were “more than adequate to qualify [the analyst’s] assertions [in the certificate] as	17
testimonial.” Id. at 2717; see also State v. Huettl, 2013-NMCA-038, ¶ 37, 305 P.3d	18
956 (“What has emerged as clearly impermissible is an expert’s testimony which is	19

15
based solely upon a non-testifying analyst’s analysis and conclusions.” (citing	1
Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2717-18)).	2
{25} 	Again writing on behalf of the dissenting justices as in Melendez-Diaz, Justice	3
Kennedy denounced as a “hollow formality” the requirement that the technician who	4
prepared the BAC report testify regarding “routine authentication elements for a report	5
that 	would 	be 	assessed 	and 	explained 	by 	in-court 	testimony 	subject 	to 	full	6
cross-examination” of the witness who had knowledge of 	the 	processes 	for	7
authenticating the samples. Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2723-24	8
(Kennedy, J., dissenting).	9
c. 	Williams 	Upholds the Admission of an Expert’s Opinion That the	10
Defendant’s DNA Was Found on Swabs Taken From the Victim, But Does	11
Not Offer a Controlling Rationale in Support of Its Holding	12
{26} 	In Williams, 567 U.S. ___, 132 S. Ct. 2221, the Supreme Court applied the	13
Confrontation Clause to the admission of expert scientific testimony based on hearsay.	14
The victim in Williams had been kidnapped and raped by an unknown assailant and	15
was taken to a hospital. Id. at ___, 132 S. Ct. at 2229. There, doctors treated the	16
victim’s wounds and took a blood sample and vaginal swabs, sealed the swabs, and	17
submitted them to a crime lab for testing. Id. At the crime lab, a technician performed	18
a chemical test on the swabs, confirmed the presence of semen, resealed the kit, and	19
placed it in a secure freezer. Id. Police then sent the swabs from the victim to Cellmark	20

16
Diagnostics Laboratory (Cellmark), which contracted with the state to perform DNA	1
testing. Id. Cellmark tested the swabs and returned a report to the police containing	2
a male DNA profile derived from semen found on the swabs. Id. The police matched	3
the profile produced by Cellmark with an earlier profile derived from a sample taken	4
as a result of the defendant’s arrest years before. Id. The victim identified the	5
defendant as her assailant during a lineup, and the state charged the defendant with	6
rape, kidnapping, and aggravated robbery. Id.	7
{27} 	The state did not call as witnesses the technicians at Cellmark who had actually	8
developed a DNA profile from the samples collected from the victim’s swabs. Id.	9
Instead, the state called the forensic scientist who had used a chemical test to confirm	10
the presence of semen on the vaginal swabs taken from the victim, a forensic analyst	11
who had developed a DNA profile from the blood sample taken from the defendant	12
when he was arrested in 2000, and a third expert who had compared this DNA profile	13
with the profile created by Cellmark. Id. The third expert testified that the Cellmark	14
profile matched the profile generated from the sample taken in 2000, stating both that	15
it was common within the scientific community for experts to rely on records	16
generated by other DNA experts, and that she and other experts in her field regularly	17
relied on shipping manifests and other labels in assuming that the DNA evidence they	18
analyzed was authentic. Id. at ___, 132 S. Ct. at 2230.	19

17
{28} 	The defendant challenged the admission of the expert’s comparison of the two	1
samples, arguing that the expert’s reliance on testing performed by Cellmark’s	2
employees (who did not testify) violated the Confrontation Clause. Id. The state	3
responded that the defendant’s right was not violated because Defendant had an	4
opportunity to cross-examine the analyst who had developed a profile from the 2000	5
sample and the analyst who had compared the results of the 2000 sample with the	6
Cellmark profile. Id. at ___, 132 S. Ct. at 2231. The state also argued that under Rule	7
703 of the Federal Rules of Evidence, “an expert is allowed to disclose the facts on	8
which the expert’s opinion is based even if the expert is not competent to testify to	9
those underlying facts.” Id. at ___, 132 S. Ct. at 2231. The prosecutor concluded that	10
“any deficiency in the foundation for the expert’s opinion doesn’t go to the	11
admissibility of that testimony, but instead goes to the weight of the testimony. ” Id.	12
(alterations, internal quotation marks, and citation omitted). The trial court agreed and	13
overruled the defendant’s objection to the expert’s comparison of the two DNA	14
profiles. Id.	15
{29} 	Williams rejected the defendant’s arguments in a split opinion with no	16
controlling rationale. A plurality of four justices—the same four who dissented in	17
Melendez-Diaz and Bullcoming—would have held that the expert’s testimony was not	18
hearsay (and therefore not subject to scrutiny under the Confrontation Clause) because	19

18
it was not offered for the truth of the matter asserted. Id. at ___, 132 S. Ct. at 2236-41	1
(plurality opinion). This plurality reasoned as follows:	2
[The] expert witness referred to the report not to prove the truth of the	3
matter asserted in the report, i.e., that the report contained an accurate	4
profile of the perpetrator’s DNA, but only to establish that the report	5
contained a DNA profile that matched the DNA profile deduced from	6
petitioner’s blood. Thus . . . the report was not to be considered for its	7
truth but only for the distinctive and limited purpose of seeing whether	8
it matched something else. The relevance of the match was then	9
established by independent circumstantial evidence showing that the . . .	10
report was based on a forensic sample taken from the scene of the crime.	11
Id. at ___, 132 S. Ct. at 2240-41 (internal quotation marks and citation omitted).	12
{30} 	In the alternative, the plurality concluded that the defendant’s Confrontation	13
Clause right was not violated even if the Cellmark DNA analysis had been admitted	14
into evidence to prove that the Defendant’s DNA had been found in vaginal swabs	15
from the victim because the analysis “plainly was not prepared for the primary	16
purpose of accusing a targeted individual.” Id. at ___, 132 S. Ct. at 2243 (plurality	17
opinion). The plurality identified two non-testimonial purposes behind the DNA	18
evidence: (1) “catch[ing] a dangerous rapist who was still at large”; and (2) because	19
the DNA analysis is divided among numerous technicians, “it is likely that the sole	20
purpose of each technician is simply to perform his or her task in accordance with	21
accepted procedures[,]” not accusing the defendant of wrongdoing. Id. at ___, 132	22
S. Ct. at 2243-44. The plurality also identified three factors that minimized any	23

19
likelihood that the evidence had been fabricated: First, the plurality noted that “no one	1
at Cellmark could have possibly known that the profile that it produced would turn out	2
to inculpate [the defendant]—or for that matter, anyone else whose DNA profile was	3
in a law enforcement database.” Id. Second, it is possible to detect whether the DNA	4
sample used by Cellmark had been degraded based on the profile itself; it was not	5
necessary to conduct an independent examination of the DNA swabs themselves. Id.	6
at ___, 132 S. Ct. at 2244. Third,	7
[a]t the time of the testing, [the defendant] had not yet been identified as	8
a suspect, and there is no suggestion that anyone at Cellmark had a	9
sample of his DNA to swap in by malice or mistake. And given the	10
complexity of the DNA molecule, it is inconceivable that shoddy lab	11
work would somehow produce a DNA profile that just so happened to	12
have the precise genetic makeup of [the defendant], who just so	13
happened to be picked out of a lineup by the victim. The prospect is	14
beyond fanciful.	15
Id. at ___, 132 S. Ct. at 2244 (emphasis added).	16
{31} 	Unlike in Melendez-Diaz and Bullcoming, Justice Thomas concurred with the	17
previously dissenting justices and thereby provided the controlling fifth vote to affirm	18
the Illinois Supreme Court’s judgment upholding Defendant’s conviction. He	19
disagreed with the plurality’s first conclusion that the Cellmark report was not	20
hearsay. Id. at ___, 132 S. Ct. at 2256 (Thomas, J., concurring in judgment). Justice	21
Thomas wrote that “statements introduced to explain the basis of an expert’s opinion	22
are not introduced for a plausible nonhearsay purpose.” Id. at ___, 132 S. Ct. at 2257	23

20
(Thomas, J., concurring in judgment). He reasoned that	1
[t]o 	use 	the 	inadmissible 	information 	in 	evaluating 	the 	expert’s	2
testimony, the jury must make a preliminary judgment about whether this	3
information is true. If the jury believes that the basis evidence is true, it	4
will likely also believe that the expert’s reliance is justified; inversely,	5
if the jury doubts the accuracy or validity of the basis evidence, it will be	6
skeptical of the expert’s conclusions.	7
Id. (internal quotation marks and citations omitted).	8
{32} 	Justice Thomas concluded that the Cellmark report implicated the Confrontation	9
Clause—i.e., it was hearsay—because the state’s expert’s opinion was entirely reliant	10
on assertions in the Cellmark report that “the profile [Cellmark] reported was in fact	11
derived from [the victim’s] swabs, rather than from some other source.” Id. at ___,	12
132 S. Ct. at 2258 (Thomas, J., concurring in judgment). Justice Thomas nonetheless	13
concurred in the result, because in his view “[t]he Cellmark report lacks the solemnity	14
of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact.	15
Nowhere does the report attest that its statements accurately reflect the DNA testing	16
processes used or the results obtained.” Id. at ___, 132 S. Ct. at 2260 (Thomas, J.,	17
concurring in judgment).	18
{33} 	The four-justice dissent—comprised of the Melendez-Diaz and Bullcoming	19
majority but without Justice Thomas—would have held the Cellmark report to be	20
testimonial because it was “identical to the [blood sample report] in Bullcoming (and	21
[the drug content test in] Melendez-Diaz) in all material respects.” Id. at ___, 132	22

21
S. Ct. at 2266 (Kagan, J., dissenting) (internal quotation marks and citation omitted).	1
The dissent argued that the Cellmark report was “made to establish some fact in a	2
criminal proceeding—here, the identity of [the victim’s] attacker.” Id. (internal	3
quotation marks and citation omitted). The dissent similarly reasoned that, like the gas	4
chromatographical test for blood alcohol content in Bullcoming, “the Cellmark	5
analysis has a comparable title; similarly describes the relevant samples, test	6
methodology, and results; and likewise includes the signatures of laboratory officials.”	7
Id. at ___, 132 S. Ct. at 2266-67 (Kagan, J., dissenting).	8
{34} 	Amplifying the ideological split in Confrontation Clause analyses generated	9
post-Crawford regarding scientific evidence, the plurality charged that the dissent	10
would have no qualms with the prosecutor asking its expert whether “there [was] a	11
computer match generated of the male DNA profile produced by Cellmark to a male	12
DNA profile that had been identified as having originated from [the defendant.]” Id.	13
at ___, 132 S. Ct. at 2236 (plurality opinion) (emphasis omitted); see also id. at ___,	14
132 S. Ct. at 2267 (Kagan, J., dissenting). But because the prosecutor had instead	15
asked the expert whether “there [was] a computer match generated of the male DNA	16
profile found in semen from the vaginal swabs of [the victim] to a male DNA profile	17
that had been identified as having originated from [the defendant],” the dissent	18
concluded 	that 	admitting 	the 	state’s 	expert 	witness’s 	testimony 	violated 	the	19

22
defendant’s Confrontation Clause right. Id. at ___, 132 S. Ct. at 2236 (plurality	1
opinion) (emphasis omitted); id. at ___, 132 S. Ct. at 2267 (Kagan, J., dissenting).	2
4. 	Under Bullcoming and Our Supreme Court’s Controlling Interpretation	3
of Williams, SANE Vandiver’s Absence Requires the Exclusion of Ms.	4
Williams’ Expert Opinion That Defendant’s DNA Was Found on Swabs	5
Taken From P.W.	6
{35} 	In Navarette, our Supreme Court read Williams to stand for (among others) the	7
following propositions: (1) “that a statement can only be testimonial if the declarant	8
made the statement primarily intending to establish some fact with the understanding	9
that the statement may be used in a criminal prosecution[,]” id. ¶ 8; (2) “even if a	10
statement . . . does not target a specific individual, the statement may still be	11
testimonial[,]” 2013-NMSC-003, ¶ 10; and (3) “an out-of-court statement that is	12
disclosed to the fact-finder as the basis for an expert’s opinion is offered for the truth	13
of the matter asserted[,]” id. ¶ 13, and is therefore subject to exclusion if its primary	14
purpose is testimonial.	15
{36} 	Navarette answered whether the Confrontation Clause “preclude[s] a forensic	16
pathologist from relating subjective observations recorded in an autopsy report as a	17
basis for the pathologist’s trial opinions, when the pathologist neither participated in	18
nor observed the autopsy performed on the decedent.” Id. ¶ 1. Our Supreme Court	19
held that the statements were subject to exclusion because the autopsy was performed	20
as part of a homicide investigation and the pathologist who had performed the autopsy	21

23
had a statutory duty to report possible deaths by homicide to law enforcement. Id. ¶¶	1
15-17. The Court reasoned that “the medical examiner’s findings as to the cause of	2
death and as to soot, stippling, and gunpowder all went to the issues of whether [the	3
victim’s] death was a homicide and, if so, who shot him. These issues reflected	4
directly on [the defendant’s] guilt or innocence.” Id. ¶ 17.	5
{37} 	Here, the basis for Ms. Williams’ opinion that Defendant’s DNA was found on	6
P.W.’s body is SANE Vandiver’s hearsay statements that the swabs came from P.W.	7
As our Supreme Court noted, such “basis” evidence amounts to the admission of out-	8
of-court statements to prove the truth of the matter they assert (i.e., to prove that the	9
DNA was found on P.W.’s body) and therefore must be subjected to Confrontation	10
Clause scrutiny. See id. ¶ 13. We are not persuaded by the State’s argument that Ms.	11
Williams relied on the swabs themselves, not SANE Vandiver’s statements on the	12
envelopes containing the swabs. Had Ms. Williams testified that she had found	13
Defendant’s DNA on swabs (and did not disclose that the swabs were taken from	14
P.W.), her testimony would be irrelevant because it would not make it any more or	15
less probable that Defendant had in fact touched P.W. See Rule 11-401(A) (“Evidence	16
is relevant if it . . . has any tendency to make a fact more or less probable than it would	17
be without the evidence[.]”). It is Ms. Williams’ reliance on the statements identifying	18
P.W. as the source of the swabs that supplies relevance to Ms. Williams’ expert	19

24
testimony. Without SANE Vandiver’s statements linking the swabs Ms. Williams	1
tested to the examination of P.W. (and the portions of P.W.’s body on which a swab	2
was used), Ms. Williams’ testimony would be that Defendant’s DNA was found on	3
various swabs of unknown origin.	4
{38} 	The context of SANE Vandiver’s examination of P.W. leaves no doubt that the	5
statements were made with the primary purpose of establishing a fact—that	6
Defendant’s DNA was found on P.W.—for use in a future criminal proceeding against	7
Defendant. See Navarette, 2013-NMSC-003, ¶ 8 (“[A] statement can only be	8
testimonial if the declarant made the statement primarily intending to establish some	9
fact with the understanding that the statement may be used in a criminal prosecution.”)	10
First, 	P.W. 	had 	already 	identified 	Defendant 	as 	the 	one 	who 	touched 	her	11
inappropriately before she was examined by SANE Vandiver, so it cannot be argued	12
that the swabs were used in order to identify and apprehend P.W.’s unknown,	13
dangerous assailant. Second, because P.W. was not in need of emergency medical	14
treatment, there is no basis to conclude that the swabs were taken in “surrounding	15
circumstances” that suggest a nontestimonial primary purpose. See State v. Mendez,	16
2010-NMSC-044, ¶¶ 37-39, 148 N.M. 761, 242 P.3d 328 (holding that a hearsay	17
statement made to a SANE by a victim who testifies at trial is admissible under Rule	18
11-803(4) NMRA based upon the statement’s medical purpose despite the otherwise	19

25
primarily testimonial purpose of a SANE examination). Third, as Ms. Monahan	1
testified, the “primary purpose” of the SANE kits was to create reliable, consistent	2
DNA evidence for testing and use in future criminal prosecutions. As was the case	3
with the medical examiner in Navarette, SANE Vandiver would have reasonably	4
expected that her collection of swabs from P.W. and her placement of those swabs in	5
envelopes labeled “vagina,” “anus,” all go to the issue of whether Defendant	6
improperly touched P.W., and therefore “reflect[] directly on [Defendant’s] guilt or	7
innocence.” 2013-NMSC-003, ¶ 17.	8
{39} 	In recently addressing nearly identical circumstances in Commonwealth v.	9
Jones, 37 N.E.3d 589 (Mass. 2015), the Supreme Judicial Court of Massachusetts was	10
asked whether the Confrontation Clause permitted “the [c]ommonwealth to introduce,	11
through the testimony of an expert witness who was not present when the victim’s	12
‘rape kit’ examination was performed, evidence concerning how the various swabs	13
that the expert tested were collected.” Id. at 592. Jones, like this case, involved	14
allegations that the defendant had touched the alleged victim’s genitals. Id. at 594.	15
And as is the case here, the commonwealth in Jones sought to prove the defendant’s	16
guilt by offering expert opinion testimony that the defendant’s DNA was found in the	17
area surrounding the alleged victim’s genitals. Id. Finally, like the State here, the	18
commonwealth in Jones did not offer at trial the testimony of the nurse who	19

26
personally examined the alleged victim. Id. at 595. Rather, the trial court “permitted	1
the 	[c]ommonwealth’s 	first 	expert 	witness, 	who 	was 	not 	present 	during 	the	2
examination . . . to testify to her ‘understanding’ of how the three swabs had been	3
collected.” Id. Like Ms. Williams here, the commonwealth’s expert’s “understanding”	4
of how the three swabs were collected was “based . . . on information the expert	5
learned from the ‘evidence collection inventory list’ purportedly completed by the	6
nurse who conducted the ‘rape kit’ examination.” Id.	7
{40} 	Citing 	the 	same 	Supreme 	Court 	authority 	our 	Supreme 	Court 	in	8
Navarette applied and we apply today, compare Navarette, 2013-NMSC-003, ¶¶ 7-21,	9
with Jones, 37 N.E.3d at 596, 600, the Jones court found that the defendant’s	10
Confrontation Clause rights were violated because the statements identifying various	11
swabs and the inventory list affixed to the “rape kit” were in essence “a series of	12
factual statements concerning how the various swabs were collected.” Jones, 37	13
N.E.3d at 596. The court reasoned that these statements were “plainly testimonial”	14
because “ ‘a reasonable person in the speaker’s position would anticipate his findings	15
and conclusions being used against the accused in investigating and prosecuting a	16
crime[.]’ ” Id. at 597 (alterations omitted) (quoting Clark, ___U.S. at ___, 135 S. Ct.	17
at 2181). Applying both the United States and our Supreme Court’s controlling	18
interpretations of the Confrontation Clause, the same logic applies in this case with	19

27
equal force. SANE Vandiver’s statements on the labels affixed to the kit are	1
testimonial hearsay because SANE Vandiver would have reasonably understood those	2
statements’ sole purpose to be for use in investigating and prosecuting criminal	3
charges against Defendant. Allowing Ms. Williams to testify that Defendant’s DNA	4
had been found on P.W. based on inferences from labels on the examination kit	5
prepared by SANE Vandiver “would be akin to allowing a chemist to testify to the	6
chemist’s ‘understanding,’ based on information relayed to the chemist in a report	7
drafted by nontestifying police officers, that a substance later determined to be cocaine	8
had been found in the defendant’s trouser pocket.” Jones, 37 N.E.3d at 598.	9
{41} 	In support of its argument that introduction of Ms. Williams’ expert testimony	10
would not violate the Confrontation Clause, the State cites Fencher v. State, 931 So.	11
2d 184, 186-87 (Fla. Dist. Ct. App. 2006), which held that the admission of an	12
expert’s analysis of DNA found on a rape kit collected by an unavailable SANE nurse	13
did not violate the defendant’s Confrontation Clause right. But Fencher was decided	14
before the Supreme Court had considered the Confrontation Clause implications of	15
scientific evidence and expert testimony in Melendez-Diaz, Bullcoming, and Williams.	16
Moreover, Fencher’s holding is based on the rationale that the SANE nurse “merely	17
procured the samples[;]” while others secured a chain of custody and provided the	18
basis for the expert’s conclusion that Defendant’s DNA was found on the victim. 931	19

28
So. 2d at 187. Bullcoming expressly rejects this rationale; the SANE nurse who	1
collects samples, like a police officer who notes the speed of a car using a radar gun	2
or a technician who operates a gas chromatograph machine, is not a “mere scrivener.”	3
564 U.S. at ___, 131 S. Ct. at 2714.	4
CONCLUSION	5
{42} 	The relevance and admissibility of Ms. Williams’ expert testimony that	6
Defendant’s DNA was found on P.W. is based entirely on her reliance on testimonial	7
hearsay identifying P.W., and locations of her body, as the source of evidence	8
collected upon the swabs Ms. Williams later tested. Because the declarant of those	9
statements—SANE Vandiver—is unavailable to testify, allowing Ms. Williams to	10
offer her opinion to the jury would violate Defendant’s rights under the Confrontation	11
Clause of the Sixth Amendment. We therefore affirm the district court’s order	12
granting Defendant’s motion to suppress evidence. The case is remanded to the district	13
court for further proceedings.	14
{43} 	IT IS SO ORDERED.	15
_________________________________	16
J. MILES HANISEE, Judge	17
WE CONCUR:	18

—

JAMES J. WECHSLER, Judge

LINDA M. VANZI, Judge

29