State of Maine v. Rochelle Gleason

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 52
Docket: Pen-24-248
Argued: April 9, 2025
Decided: June 17, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.

STATE OF MAINE

v.

ROCHELLE GLEASON

MEAD, J.

[¶1] Rochelle Gleason appeals from a judgment of conviction of

aggravated trafficking of a scheduled drug that in fact caused the death of a

person (Class A), 17-A M.R.S § 1105-A(1)(K) (2025), entered by the trial court

(Penobscot County, Mallonee, J.) after a jury trial. On appeal, Gleason raises an

issue concerning her Sixth Amendment right to confront the people who

performed several toxicology tests that served as the basis for an expert

toxicologist’s opinion testimony. The United States Supreme Court’s decision

in Smith v. Arizona, 602 U.S. ---, 144 S. Ct. 1785 (2024), which was issued during

the pendency of this appeal,1 did away with a line of reasoning that the trial

1 The appeal has been pending since May 16, 2024. The Supreme Court issued its decision in
Smith v. Arizona, 602 U.S. ---, 144 S. Ct. 1785 (2024), on June 21, 2024. In Griffith v. Kentucky, the
Supreme Court held that “a new rule for the conduct of criminal prosecutions is to be applied
2

court relied upon when it admitted the expert toxicologist’s testimony. We

vacate the judgment and remand for a new trial.

I. BACKGROUND

A. Factual Background

[¶2] Viewing the evidence in the light most favorable to its verdict, the

jury rationally could have found the following facts. See State v. Fay, 2015 ME

160, ¶ 2, 130 A.3d 364.

[¶3] In October 2021, Gleason and the decedent communicated regularly

regarding the purchase of fentanyl and heroin, often using slang like “fingy,”

“fetty,” “brown,” and “down.” On October 16, 2021, the decedent messaged

Gleason asking to purchase more drugs. Gleason responded with a voice

message for the decedent, stating that she had some “dark, dark shit that is

expensive but worth it.” She continued that she had acquired some “fire,

harsher shit” and added that she could get him $40 worth. The decedent

agreed.

[¶4] Later that evening, the decedent drove with his twelve-year-old

daughter to Third Street in Bangor. His daughter remained in the car while he

retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U.S. 314,
328 (1987); accord State v. Labbe, 2024 ME 15, ¶ 39, 314 A.3d 162. Because this case is on direct
review, the rule announced in Smith applies retroactively in this case.
3

met with Gleason. His daughter observed the decedent exchange money for

something. The decedent returned home and said goodnight to his daughter.

He then consumed the fentanyl that he had purchased from Gleason, along with

a nonscheduled but potentially lethal fentanyl metabolite called kratom or

mytragynine. The decedent died of acute intoxication shortly after consuming

the drugs.

[¶5] The Maine Office of the Chief Medical Examiner sent a sample of the

decedent’s blood to the NMS Forensic Toxicology Laboratory in Pennsylvania.

At the lab, several lab employees conducted a series of tests on the sample. The

tests included two separate screening tests that screened for a wide variety of

compounds and a confirmatory test to quantify any substance for which the

screening produced positive results. The lab, at the request of the Chief Medical

Examiner, also ran confirmatory tests specifically aimed at determining the

presence and quantity of fentanyl and kratom in the decedent’s blood. Two

different lab employees reviewed the results of the tests to determine whether

the instruments were accurate, there were no anomalies, and appropriate

protocols were being followed. After each test, a lab employee exported the

data from the testing instruments to a computer. A forensic toxicologist who

also works for NMS Laboratory, Chelsea Deisher, then conducted another
4

review of the data and the documentation. Deisher had a record of everyone

who prepared the samples and conducted a review of the data, but she did not

have a record of the employees who had operated the instruments during the

tests or the employees who had exported the data from the instrument to the

computer. Relying upon the results and data obtained by the other employees,

Deisher then developed a toxicology report that revealed that the decedent’s

blood contained 26 nanograms per milliliter of fentanyl, 1.8 nanograms per

milliliter of norfentanyl (a breakdown product of fentanyl), and 22 nanograms

per milliliter of kratom.

B. Procedural History

[¶6] On September 28, 2022, the State charged Gleason by complaint

with aggravated trafficking of a scheduled drug that in fact caused the death of

a person (Class A), 17-A M.R.S. § 1105-A(1)(K). Gleason pleaded not guilty.

[¶7] The court held a five-day trial from April 29 to May 3, 2024. At trial,

Deisher testified for the State about the results of several tests. Deisher

explained that she had not actually conducted the tests but rather had reviewed

the data and documentation and had analyzed the results. Gleason objected to

this testimony and moved for a mistrial on the ground that the testimony

violated her Sixth Amendment Confrontation Clause right because she did not
5

have an opportunity to cross-examine the actual testers to question whether

the test sequences and procedures were properly followed. After hearing

additional testimony outside of the presence of the jury, the court allowed

Deisher to continue testifying.

[¶8] Later, a deputy chief medical examiner testified that the results that

Deisher discussed during her testimony indicated that the decedent had a toxic

level of fentanyl in the blood and died of acute intoxication due to the combined

effects of fentanyl and kratom.

[¶9] The jury returned a verdict of guilty. On May 16, 2024, the court

held a sentencing hearing at which it sentenced Gleason to eighteen years’

imprisonment, with all but eight years suspended, and four years of probation.

[¶10] Gleason timely appealed. See M.R. App. P. 2B(b)(1); 15 M.R.S.

§ 2115 (2025).

II. DISCUSSION

[¶11] The Confrontation Clause of 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.” U.S.

Const. amend. VI. The federal Confrontation Clause applies to the states

through the Fourteenth Amendment. Melendez-Diaz v. Massachusetts, 557 U.S.
6

305, 309 (2009); accord State v. Jones, 2018 ME 17, ¶ 8, 178 A.3d 481. “We

review de novo the impact of the admission of testimony on the constitutional

right to confront witnesses.” State v. Judkins, 2024 ME 45, ¶ 11, 319 A.3d 443

(quotation marks omitted).

[¶12] The Confrontation Clause operates by prohibiting the “admission

of testimonial statements of a witness who did not appear at trial unless [that

witness] was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36,

53-54 (2004). The Confrontation Clause applies only to statements that are

both (1) hearsay—meaning out-of-court statements offered “to prove the truth

of the matter asserted,” id. at 59 n.9, 60; see M.R. Evid. 801(c), and

(2) testimonial. See State v. Lovell, 2022 ME 49, ¶ 13, 281 A.3d 651.

A. Hearsay

[¶13] In analyzing the hearsay prong of the Confrontation Clause

analysis, a court “must identify the role that a given out-of-court statement

. . . served at trial.” Smith, 602 U.S. at ---, 144 S. Ct. at 1797. The Confrontation

Clause protections extend in full to forensic evidence. Id. at ---, 144 S. Ct. at

1791. In Smith, the Supreme Court clarified that this means that “a prosecutor

cannot introduce an absent laboratory analyst’s testimonial out-of-court
7

statements to prove the results of forensic testing.” Id. In reaching its holding,

the Court provided a new rule: “If an expert for the prosecution conveys an

out-of-court statement in support of his opinion, and the statement supports

that opinion only if true, then the statement has been offered for the truth of

what it asserts.” Id. at ---, 144 S. Ct. at 1798.

[¶14] In Smith, the prosecution sent items suspected of being illicit drugs

to a crime lab for a full scientific analysis. Id. at ---, 144 S. Ct. at 1795. An analyst

ran several tests, prepared notes documenting her lab work and results, and

issued a report that distilled her notes into two pages of ultimate findings,

stating that the items included useable quantities of methamphetamines,

marijuana, and cannabis. Id. At trial, the prosecution called a forensic scientist,

who had no prior connection to the case but was familiar with the lab’s general

practices, to offer an “independent opinion” based entirely on his review of the

lab analyst’s notes and report. Id. at ---, 144 S. Ct. at 1795-96, 1799. The

forensic scientist testified regarding the procedures and tests the analyst used

and then related the content of the notes and the report “item by item by item.”

Id. at ---, 144 S. Ct. at 1795. He then opined that the tested substances included

useable quantities of methamphetamines, marijuana, and cannabis. Id. at ---,

144 S. Ct. at 1796.
8

[¶15] The Smith Court found it problematic that the forensic expert

“could opine that the tested substances were marijuana, methamphetamine,

and cannabis only because he accepted the truth of what the [the analyst] had

reported about her work in the lab—that she had performed certain tests

according to certain protocols and gotten certain results.” Id. at ---, 144 S. Ct. at

1799-1800. The Court reasoned that the prosecution had essentially used the

forensic scientist as a “mouthpiece” for the analyst’s lab work so that the jury

would believe the truth of the results. Id. at ---, 144 S. Ct. at 1800-01.

Accordingly, the Court held that because the testifying forensic scientist’s

opinion would be of little to no value to the prosecution if the underlying report

and notes were not true, the contents of the report and notes were being offered

for their truth, implicating the Confrontation Clause. Id. at ---, 144 S. Ct. at

1799-1800.

[¶16] The new rule did away with the so-called “not for the truth”

rationale, which allowed experts, under evidence rules, to disclose underlying

facts and data without implicating the Confrontation Clause because the

underlying facts and data were not being admitted for the truth but rather for

the purpose of explaining the basis of an opinion. Id. at ---, 144 S. Ct. at 1793-94.

For example, in Williams v. Illinois, using vaginal swabs sent by the state police,
9

a private lab provided the police with a DNA profile. 567 U.S. 50, 61 (2012). A

state analyst then checked that DNA profile against a police department’s

database, finding that the DNA matched the profile of the defendant. Id. at

61-62. The prosecution called only the state analyst, who had no first-hand

knowledge of how the lab had produced its results, to offer the expert opinion

that the DNA profile matched the defendant. Id. at 61-62. A plurality of the

Supreme Court held that the expert’s opinion testimony did not implicate the

Confrontation Clause because the out-of-court statement (the DNA profile) was

not admitted for its truth but rather to explain the basis of the opinion. Id. at

57-58, 71, 78. In criticizing the plurality’s approach in Williams, the Court in

Smith explained that “[the state analyst] became the conduit for what a

different analyst had reported—that a particular DNA profile came from [the

victim’s] vaginal swabs.” Smith, 602 U.S. ---, 144 S. Ct. at 1793.

[¶17] Our case law had also recognized the “not for the truth” rationale.

In both State v. Mitchell, 2010 ME 73, ¶ 20, 4 A.3d 478, and State v. Mercier, 2014

ME 28, ¶ 5, 87 A.3d 700, the prosecution called medical experts who gave

opinions concerning the cause of the victims’ injuries based entirely on autopsy

reports authored by people whom the defendants did not have an opportunity

to cross-examine. In both cases, we held that the Confrontation Clause was not
10

implicated because the experts’ testimony relaying the contents of the autopsy

reports to the juries were received in evidence not for their truth but rather to

help explain the bases of the experts’ opinions. Mitchell, 2010 ME 73, ¶ 47, 4

A.3d 478; Mercier, 2014 ME 28, ¶¶ 10, 13-15, 87 A.3d 700. The Court in Smith

explicitly mentioned our decision in Mercier as an example of a state court using

the “not for the truth” reasoning that the Court found problematic.2 Smith, 602

U.S. at ---, 144 S. Ct. at 1794 n.2.

[¶18] In a recent case applying the rule announced in Smith, State v.

Thomas, 2025 ME 34, ¶¶ 56-59, --- A.3d ---, we held that a testifying chemist’s

opinion concerning the identity and weight of several chemical substances was

inadmissible hearsay for the purposes of the Confrontation Clause analysis.3 In

We note, however, that our pre-Mercier jurisprudence is in accord with Smith. In Henricksen v.
2

Cameron, 622 A.2d 1135, 1143 (Me. 1993), one doctor testified about the contents of a report of
another doctor that the testifying doctor had reviewed in formulating his opinion. We held that the
contents of the other doctor’s report were inadmissible:

Testimony regarding the substance of Dr. Voss’s report, however, is not necessary to
establish factual foundation under Rule 703 and remains hearsay not within any
exception. See M.R. Evid. 801–804. Rule 703 does not make the substance of
Dr. Voss’s report admissible and, therefore, admitting Dr. Collins’ testimony about the
substance of the report was error.

Id. at 1144.
3The Court of Appeals for the First Circuit has also had an opportunity to issue a Confrontation
Clause decision following the Supreme Court’s decision in Smith v. Arizona in an appeal from a federal
district court’s denial of a petition for habeas corpus relief. See Watson v. Edmark, 118 F.4th 456 (1st
Cir. 2024). Like this case, Watson concerned a toxicologist’s expert testimony based on data and test
results generated by lab analysts that were not present at trial. Id. at 458. In affirming the district
court’s grant of summary judgment, the First Circuit, applying standards of review unique to habeas
corpus proceedings, determined that the petitioner had failed to rebut the presumption of
11

that case, an expert chemist testified that he conducted a “technical review” of

another chemist’s work, “retracing the steps” of the other chemist to ensure

that information was accurate and consistent. Id. at ¶¶ 29-30 (quotation marks

omitted). The expert chemist also testified that he had conducted an

“independent review” of the data, using the other chemist’s handwritten notes

and comparing the data produced by the other chemist to a known profile of

fentanyl to “independently” conclude that the data and the known profile

matched. Id. ¶ 31. We held that the prosecution used the expert chemist as a

“conduit” for the other chemist’s statement “that the particular data came from

the samples seized from [the defendant]” and that the expert chemist relied on

the truth of the notes and the data generated by the other chemist. Id. ¶ 58

(quotation marks omitted). Accordingly, we held that the forensic scientist’s

testimony had conveyed the out-of-court statements for their truth and

therefore constituted hearsay for the purposes of the Confrontation Clause

analysis. Id. ¶ 59.

correctness of factual findings by the state court. Id. at 459-61. The court held that the petitioner
had not met his burden of showing that there could be “room for fairminded disagreement” as to
whether an expert forensic toxicologist was an incompetent witness. Id. at 461-62. Finally, the court
held that the petitioner had failed to address whether the data and test results relied on by the
toxicologist constituted “statements of an absent analyst.” Id. at 462 n.5.
12

[¶19] Here, the facts are most akin to those in Thomas, 2025 ME 34,

¶¶ 29-31, --- A.3d ---. Like the expert chemist in Thomas, the forensic

toxicologist who testified at trial, Deisher, conducted a technical review of the

data and the documentation in the case, which included notes made by other

lab employees concerning anomalies in the data and whether protocols had

been followed. Deisher did not prepare the samples, run the tests, or export the

data from the instruments to the computer; nor did she personally observe

other lab employees doing those things. Using the data generated by others,

Deisher conducted an independent review to develop a toxicology report.

Deisher acknowledged that her independent review “rel[ied] upon the

assumption that all the testing sequences and processes were properly

followed.” Deisher also recognized that the data she reviewed was the product

of judgments made by other reviewers and lab employees. As did the expert

chemist in Thomas, Deisher relied on the truth of the documentation and the

data that had been generated by others. Moreover, Deisher could only assume

that the samples tested by the other lab employees came from the victim.

[¶20] In allowing the witness to testify over Gleason’s Confrontation

Clause objection, the trial court, citing Maine Rule of Evidence 703, reasoned

that “[t]his is clearly the type of information upon which experts rely in issuing
13

their opinions. . . . [Deisher] is a live witness with technical expertise within an

organization who has gathered together information from a number of

different actors within that organization, and she is in a position both critically

to assess it, and to explain it, and to be subjected to cross-examination on it.”

The trial court’s reasoning is an exemplar of the “not for the truth” rationale

that was rejected in Smith, because it suggests that the underlying out-of-court

statements (the data and the documentation) were not being admitted for their

truth but to explain the basis of the opinion.

[¶21] Furthermore, Deisher’s expert opinion testimony presents the

same Confrontation Clause problem identified by the Smith Court. The State

essentially used Deisher as a “mouthpiece” to convey that other lab employees

had precisely followed procedures and protocols so that the jury would believe

the truth of the lab results. See Smith, 602 U.S. at ---, 144 S. Ct. at 1800-01

(holding that the prosecution impermissibly used an expert “to relay what [the

analyst] wrote down,” including the “precautions (she said) she took, the

standards (she said) she followed, the tests (she said) she performed, and the

results (she said) she obtained”). Gleason did not have an opportunity to

cross-examine the other lab employees concerning the procedures that they
14

supposedly followed or whether the samples that they tested actually came

from the victim.

[¶22] Applying the rule announced in Smith, we conclude that the data

and record of the lab procedures are out-of-court statements being offered for

their truth because if the tests did not reveal the presence of fentanyl, Deisher’s

expert opinion would have been of no value to the prosecution.

B. Testimonial

[¶23] Having determined that the hearsay prong of the Confrontation

Clause analysis has been satisfied, we would normally consider whether the

statements at issue were testimonial to determine whether the Confrontation

Clause has been violated. See Judkins, 2024 ME 45, ¶ 12, 319 A.3d 443. “A

testimonial statement is ‘typically a solemn declaration or affirmation made for

the purpose of establishing or proving some fact.’” State v. Beeler, 2022 ME 47,

¶ 21, 281 A.3d 637 (quoting Crawford, 541 U.S. at 551). “In determining

whether an out-of-court statement qualifies as testimonial, courts look at

whether the primary purpose of the statement is to establish or prove a fact to

be used later in trial.” Id. ¶ 22 (quotation marks omitted); see also Smith, 602

U.S. at ---, 144 S. Ct. at 1800-01 (“A court must . . . identify the out-of-court
15

statement introduced, and must determine, given all the relevant

circumstances, the principal reason it was made.” (quotation marks omitted)).

[¶24] This case presents an unusual procedural posture. The trial court

admitted Deisher’s testimony based on a rationale that was supported by case

law at the time. See Mercier, 2014 ME 28, ¶¶ 10, 13-15, 587 A.3d 700. Because

a then-existing rule of law was fully dispositive of the Confrontation Clause

issue, neither the State nor the trial court reached the testimonial prong of the

analysis. Cf. State v. Wright, 726 N.W.2d 464, 482 (Minn. 2007); People v.

Stechly, 870 N.E.2d 333, 371 (Ill. 2007). We are a court of review, not of first

view, see In re Est. of Williams, 141 Me. 219, 221, 41 A.2d 825, 825 (1945), and,

therefore, we will not make the necessarily fact-specific initial determination

as to whether the statements at issue are testimonial. See State v. Metzger, 2010

ME 67, ¶ 22, 999 A.2d 947 (“[W]hether [a statement] is testimonial and thus

barred by the Confrontation Clause . . . is necessarily a fact-specific inquiry.”).

Additionally, because the parties developed their respective records based on

a standard that is no longer permissible, fairness requires us to vacate the

judgment of conviction and remand this case for a new trial to allow the trial

court, in the first instance, to address whether the statements relied upon by

the expert witness in reaching her opinion were testimonial or nontestimonial.
16

See Portfolio Recovery Assocs., LLC v. Clougherty, 2021 ME 20, ¶ 11, 248 A.3d 950

(“Because the parties developed their respective records with a different

evidentiary standard in mind, fairness requires that we remand these matters

for further proceedings, which may include reopening the record to allow

further argument or to take new evidence.”).

The entry is:

Judgment vacated. Remanded for a new trial.4

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Rochelle
Gleason

Aaron M. Frey, Attorney General, and Jason Horn, Asst. Atty. Gen. (orally), Office
of the Attorney General, Augusta, for appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2022-3059
FOR CLERK REFERENCE ONLY

4 Although the Court in Smith remanded the case to the Arizona state courts to address the

testimonial versus nontestimonial issue—apparently in the context of the existing trial record—see
Smith, 602 U.S. at ---, 144 S. Ct. at 1801, we conclude that the better practice is to vacate the conviction
and remand for a wholly new trial. Because we do so, we do not reach the remainder of Gleason’s
arguments.