Griep’s right to confront the witnesses against him was not violated by allowing the supervisor of an unavailable lab analyst to testify to his opinion about the defendant’s BAC based entirely on the report prepared by the unavailable analyst. Though it recognized the uncertainty surrounding this issue, the court of appeals concludes it must follow State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, which holds that such surrogate expert testimony is admissible.
Griep was charged with OWI. The analyst who tested the blood sample taken from him was unavailable to testify at trial, so in her place the state called her supervisor, who testified that “all indications are that the procedures were followed, the instrument was operating properly,” and that in his “independent opinion,” based on the data set forth in the documentation of the testing, Griep’s BAC was 0.152. (¶¶4-6). The trial court overruled Griep’s objection to the supervisor’s testimony, citing Barton and State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 91, and rejecting Griep’s reliance on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Confrontation Clause violated by admission of affidavit setting out results of forensic testing of substance alleged to be cocaine).
Griep’s appeal was held in abeyance pending the U.S. Supreme Court’s decisions in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011), which extended the reasoning of Melendez-Diaz to the admission of a testing certificate through a surrogate analyst, and Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012), a fractured decision that failed to clarify the extent to which an expert can testify about the work of an unavailable analyst on which the testifying expert’s opinion relies. The court of appeals then certified this case to the Wisconsin Supreme Court, which denied the certification after deciding State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362. Because Deadwiller “cited and discussed Barton favorably, albeit in a completely different fact situation” (¶3), the court of appeals concludes Barton is still good law that it must adhere to in this case even though Griep “makes a good argument when he asserts that the surrogate expert testimony in this case was a subterfuge for admitting an unavailable expert’s report in violation of Bullcoming … and Williams v. Illinois ....” (¶2). In particular:
¶20 As Griep points out, Barton relied in part on reasoning that “the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.” Id., ¶22 (citation omitted). This precise logic is one of the core disputes that fractured the court in Williams v. Illinois. We also note that, unlike the DNA profiles at issue in Williams v. Illinois and Deadwiller, which were produced from samples found on victims, before any suspect was identified, the analysis of Griep’s blood was conducted for the very purpose of accusing Griep and creating evidence for use at trial. See [United States v.] Turner, 709 F.3d [1187,] 1192 [(7th Cir. 2012)]. If the DNA profile in Williams, produced by a lab in Maryland, not for the purpose of accusing anyone in particular but to provide objective data about the DNA found on a victim, which could then be compared with a database of other DNA records, Williams, 132 S. Ct. at 2229, was deemed to be offered “for the truth of the matter asserted” by a majority of the justices in Williams, it is difficult to understand how the analysis of Griep’s blood alcohol level, which was done for the sole purpose of prosecution, was not also offered “for the truth of the matter asserted.”
¶21 There is also some strength to the logic of Griep’s argument that even when a nontestifying expert’s report is not admitted into evidence, a surrogate expert’s testimony may in effect put the statements in the report into evidence. See Turner, 709 F.3d at 1191 (noting that a surrogate expert “had no first-hand knowledge” concerning the procedures followed in the testing and the conclusion based upon that resulting data and reasoning that the surrogate “put … out-of-court statements before the jury”)….
¶22 Nonetheless, with our supreme court so recently and favorably citing Barton, see Deadwiller, 350 Wis. 2d 138, ¶¶37-40, we have no choice but to conclude that Barton remains the law of our state. Only the state supreme court has the power to overrule our past decisions, Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), except when United States Supreme Court precedent overrules those decisions in such clear terms that the Supremacy Clause compels our adherence to federal law instead, [State v.] Jennings, [2002 WI 44,] 252 Wis. 2d 228, ¶43[, 647 N.W.2d 142]. Under the reasoning of Barton, the availability of a well qualified expert, testifying as to his independent conclusion about the ethanol testing of Griep’s blood as evidenced by a report from another state lab analyst, was sufficient to protect Griep’s right to confrontation. No binding federal precedent clearly overrules Barton.
On Point has discussed this confrontation issue in posts on Williams v. Illinois, the PFR grant and decision in Deadwiller, and the certification in this case, so we won’t repeat the particulars here. Practitioners dealing with this issue should take to heart the court’s expression of agreement with Griep’s argument and continue to argue that Barton can’t stand, for it barely acknowledged the sea-change in Confrontation Clause jurisprudence initiated by Crawford v. Washington, 541 U.S. 36 (2004), engaged in no real analysis of Crawford‘s rule, and instead relied heavily on the pre-Crawford decision in State v. Williams. The argument will be rejected for now based on this opinion, but the issue will be preserved in the event the U.S. Supreme Court finally resolves the issue. And that may happen sooner rather than later, for as the court of appeals notes (¶¶3 n.1, 23) there are a number of pending cert petitions that raise the issue.