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State v. Michael Griep, 2009AP3073-CR, petition for review granted 8/5/14

On review of a published court of appeals decision; case activity

Issue (composed by On Point)

Was Griep’s right to confront the witnesses against him 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?

This question has been the subject of a lot of litigation, but the most recent U.S. and Wisconsin Supreme Court decisions have failed to resolve it. Thus, the decision in this case could answer the question for Wisconsin courts, at least until the U.S. Supreme Court gets around to deciding the issue. Here’s the basic background on Griep’s long-pending appeal:

Griep was charged with OWI. The analyst who tested the blood sample taken from him was unavailable to testify at trial, so the state called the analyst’s supervisor instead. The supervisor 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. Griep, 2014 WI App 25, ¶¶4-6. Griep objected to the supervisor’s testimony, but the trial court overruled the objection based on State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, and State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 91, which held that such surrogate expert testimony doesn’t violate the Confrontation Clause. The trial court rejected Griep’s argument that those cases were no longer valid in light of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Confrontation Clause violated by admission of affidavit setting out results of forensic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).

While Griep’s appeal was pending the U.S. Supreme Court decided 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 Griep’s 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. The court of appeals then rejected Griep’s arguments, saying Deadwiller “cited and discussed Barton favorably, albeit in a completely different fact situation,” 2014 WI App 25, ¶3, and therefore it was bound to follow Barton. The supreme court has now accepted Griep’s petition for review.

Though the court of appeals concluded Barton is still good law, it noted 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 ....” 2014 WI App 25, ¶¶2, 20-21. For readers wanting more particulars on those arguments, On Point has discussed them in our posts on Williams v. Illinois, the PFR grant and decision in Deadwiller, and the certification in this case. You can also look at the briefs filed in this case in the court of appeals, and check back in the future for the briefs filed by the parties in the supreme court.

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