Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Earl Dean Robbins v. State of Alaska (8/23/2019) ap-2653

Earl Dean Robbins v. State of Alaska (8/23/2019) ap-2653


              The text of this opinion can be corrected before the opinion is published in the   

              Pacific  Reporter.    Readers  are  encouraged  to  bring  typographical  or  other  

             formal errors to the attention of the Clerk of the Appellate Courts:  

                                           303 K Street, Anchorage, Alaska  99501

                                                         Fax:  (907) 264-0878

                                               E-mail:  corrections @



                                                                                     Court of Appeals No. A-12494  

                                             Appellant,                           Trial Court No. 3PA-15-00461 CR  


                                                                                                O  P  I  N  I  O  N  


                                                                                      No. 2653 - August 23, 2019  


                      Appeal from the District Court, Third Judicial District, Palmer,  


                      John W. Wolfe, Judge.  

                      Appearances:    Josie  W.  Garton,  Assistant  Public  Defender  

                       (briefing), Renee McFarland, Assistant Public Defender (oral  


                       argument), and Quinlan Steiner, Public Defender, Anchorage,  

                       for the Appellant.  Eric A. Senta, Assistant Attorney General,  


                      Office        of     Special        Prosecutions,            Anchorage,            and      Jahna  


                      Lindemuth, Attorney General, Juneau, for the Appellee.  

                      Before:  Mannheimer, Chief Judge, Allard, Judge, and Coats,  


                       Senior Judge. *  


                      Judge MANNHEIMER.  

      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

----------------------- Page 2-----------------------

                            This appeal raises a question regarding the scope of a criminal defendant's                                                       

right of confrontation - a question that has bedeviled the courts of this country since                                                                                    

2004, when the United States Supreme Court re-interpreted the confrontation clause of                                                                                             


the federal constitution in                            Crawford v. Washington                              .    

                            In Crawford, the Supreme Court held that the federal confrontation clause  


barsthegovernment fromintroducing "testimonial"hearsay againstacriminaldefendant  


unless the defendant had an earlier adequate opportunity to cross-examine the speaker.  


But  Crawford, and the Supreme Court decisions that have followed in the wake of  


Crawford, still do not define how the Crawford rule should be applied to situations  


where  an  expert  witness  gives  testimony  that  relies  on  laboratory  testing  that  was  


performed by someone else.  


                            The defendant in the present case, Earl Dean Robbins, was arrested for  


driving under the influence after the police responded to the scene of a motor vehicle  


accident and discovered that Robbins (one of the drivers involved in the accident) was  


visibly impaired.  


                            Following his arrest, Robbinssubmitted to abreath test, butthis test showed  


that Robbins had no alcohol in his system.                                                         The  police then  obtained a sample of  


Robbins's blood, and this blood sample was ultimately sent to the Washington State  


Toxicology Laboratory for testing.  This laboratory testing showed that Robbins had  


several controlled substances in his system, in amounts that would likely have impaired  


his driving.  


                            At  Robbins's  trial,  the  State  presented  these  test  results  through  the  


testimony  of  Andrew  Gingras,  a  forensic  toxicologist  working  at  the  Washington  


       1      541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  

                                                                                      - 2 -                                                                                 2653

----------------------- Page 3-----------------------

laboratory.   Here is a recapitulation of Gingras's testimony regarding the testing of  


Robbins's blood, viewed in the light most favorable to the trial court's ruling:  


                    Robbins's case was assigned to Gingras, but Gingras did not perform all  


the testing himself.  Gingras personally tested Robbins's blood for Xanax (alprazolam).  


Gingras  also  performed  the  preliminary  test  that  detected  Soma  (carisoprodol)  in  


Robbins's blood. However, another analyst at the laboratory, Lindsay Lowe, performed  


the follow-up testing that determined the exact quantities of Soma (both the drug itself,  


carisoprodol, and its metabolite, meprobamate).  


                    After Lowe completed her testing of Robbins's blood for Soma, Gingras  


examined the resulting test data and reviewed it for any abnormalities. Gingras testified  


that he found no abnormalities and that, based on his review of Lowe's test data, he  


would have reached the same conclusions as Lowe about the levels of carisoprodol and  


meprobamate in Robbins's blood.  Accordingly, Gingras certified all the test results on  


behalf of the Toxicology Laboratory - both Gingras's own testing for Xanax, and  


Lowe's testing for Soma.  


                    On appeal, Robbins argues that the confrontation clause barred the State  


from presenting Gingras's testimony about the results of the Soma testing.  Robbins  


asserts that Gingras's connection to the Soma testing was too attenuated to pass muster  


under the confrontation clause - that any testimony about those test results could only  


be given by the analyst who personally performed the tests, and that Gingras was an  


improper hearsay conduit for that testimony.  


                                                              -  3 -                                                         2653

----------------------- Page 4-----------------------

               Why we conclude that Gingras's testimony about the Soma test results                                                                     

              did not violate the confrontation clause                             

                            Our analysis of Robbins's case hinges on three court decisions: the United                                                                


States   Supreme   Court's   decisions   in   Melendez-Diaz   v.   Massachusetts   (2009),   and  

                                                                         3                                                                                                        4  


Bullcoming v. New Mexico (2011),                                            and this Court's decision in Vann v. State (2010).  


                            Melendez-Diaz  was  the  first  time  that  the  Supreme  Court  applied  the  


Crawford confrontation rule to a criminal case that turned on the results of laboratory  


testing.   The defendant in Melendez-Diaz  was charged with unlawfully distributing  


cocaine.  To prove that the substance in the defendant's possession was cocaine, the  


government did not produce any live witness, but instead relied solely on affidavits  


prepared by the state crime laboratory. These affidavits declared that the laboratory had  



tested the substance, and that the substance was cocaine.  


                            The Supreme Court held that these affidavits were "testimonial hearsay",  


that the introduction of these affidavits against the defendant violated the confrontation  


clause, and that the government was required to produce a live witness to testify about  



the results of the laboratory testing.                                      At the same time, however, the Court declared that  


the confrontation clause did not require live testimony from everyone involved in the  


testing process:  

       2      557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).  

       3      564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).  

       4      229 P.3d 197 (Alaska App. 2010).  

       5      Melendez-Diaz , 557 U.S. at 310, 129 S.Ct. at 2532.  

       6      Melendez-Diaz , 557 U.S. at 310-11, 129 S.Ct. at 2532.  


                                                                                     - 4 -                                                                                2653

----------------------- Page 5-----------------------


                     Contrary to the dissent's suggestion, ... we do not hold, and  


                     it  is  not  the  case,  that  anyone  whose  testimony  may  be  


                     relevant in establishing the chain of custody, authenticity of  


                     the sample, or accuracy of the testing device, must appear in  


                     person as part of the prosecution's case.  



Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. at 2532 n. 1 (emphasis added).  


                     One year after theSupremeCourt issuedits decision in Melendez-Diaz, this  


Court issued our decision in  Vann v. State.  The defendant in Vann was charged with  


sexual assault, and the central issue litigated at trial was the identity of the assailant:  


Vann claimed that he had never met the victim, and that he was elsewhere on the night  



of the crime.  


                     Toprovethat Vann was the one who sexually assaulted the victim, the State  


presented the testimony of Cheryl Duda, a forensic analyst employed by the Alaska State  


Crime Laboratory.  Duda testified that the laboratory received and tested five genetic  


samples taken from Vann, from the crime victim, and from physical objects associated  


with the crime. Duda described how the laboratory tested the samples for DNA, and she  


also described the method for comparing the DNA profiles obtained from this testing.  


Based on the results of this testing and comparison, Duda asserted that Vann could not  



be excluded as the source of DNA found in the samples retrieved from the victim.  


                     The  confrontation  issue  in  Vann  arose  from  the  fact  that  Duda  had  


personally tested only three of the five genetic samples.  The other two samples were  

     7     Vann, 229 P.3d at 199.  

     8    Id. at 199-200.  

                                                               -  5 -                                                         2653

----------------------- Page 6-----------------------

tested by another DNA analyst in the Crime Laboratory, and this analyst did not testify                                                         


at Vann's trial.                


                        However, Duda testified that, after the other analyst tested the two genetic  


samples, Duda independently re-evaluated the other analyst's conclusions. Specifically,  


Duda testified that she examined the other analyst's "bench notes" to make sure that she  


followed proper testing protocols, and then Duda took the machine print-outs from the  


other analyst's testing and independently conducted her own DNA comparison analysis.  


Based on this analysis, Duda stated that she reached the same conclusion as the other  


analyst - i.e., that Vann was not excluded as the source of the DNA found in the  




                        On appeal, this Court concluded that Duda was properly allowed to testify  


about the test results obtained from all five genetic samples, even though she herself had  


personally tested only three of these samples.  


                        After surveying the decisions of other courts that had applied Melendez- 


Diaz to this type of situation, we reached the following rule:  If a witness is "simply a  


conduit" for the analysis performed by someone else - that is, if the witness simply  


"recapitulates" or "vouches for" the other person's analysis - then the confrontation  


clause is violated. But if the witness offers their own independent analysis or conclusion,  


the witness's testimony is permitted by the confrontation clause, even if the witness's  


analysis or conclusion is based on data obtained from other people's testing.  Vann, 229  


P.3d at 206.  


                        One year after this Court decided Vann, the United States Supreme Court  


revisited this confrontation clause issue in Bullcoming v. New Mexico.  The defendant  

      9     Ibid.  

      10    Id. at 200.  

                                                                         -  6 -                                                                   2653

----------------------- Page 7-----------------------

in   Bullcoming   was   charged   with   driving   under   the   influence,  and  the   government  

introduced evidence of laboratory testing performed on a sample of Bullcoming's blood                                                        

-  testing which showed that Bullcoming's blood alcohol level was .21 percent.                                                              11  


                       The facts of Bullcoming differed from the facts of Melendez-Diaz because,  


in  Bullcoming,  the test results were introduced  through  the testimony  of an  expert  


witness from the laboratory. The problem was that this witness was not the analyst who  



tested  Bullcoming's  blood.                             Rather,  the  witness  was  a  co-worker  in  the  same  


laboratory.            This  witness  was  familiar  with  the  testing  apparatus  and  the  testing  


procedures used by the laboratory, but he did not participate in or observe the testing of  


Bullcoming's blood,  nor  did  he  independently  review  or  certify  the  results  of  that  




                       The Supreme Court concluded that this expert witness's testimony violated  


the confrontation clause.  Justice Ginsburg's lead opinion is worded in a way which  


suggests that the confrontation clause requires the government to present the testimony  


of someone who personally participated in the testing of the sample.  The lead opinion  


emphasized that proper operation of the laboratory testing machine "requires specialized  


knowledge and training", and that "human error can occur at each step" of the testing  



                   Justice Ginsburg pointed out that the testifying co-worker "could not convey  


what [the actual tester] knew or observed" during the testing process, nor could the  



co-worker "expose any lapses or lies on the certifying analyst's part".  

      11   Bullcoming, 564 U.S. at 655-56, 131 S.Ct. at 2711-12.  

      12   Id. , 564 U.S. at 657, 131 S.Ct. at 2713.  

      13   Id. , 564 U.S. at 657, 661-62; 131 S.Ct. at 2712, 2715-16.  

      14   Id. 564 U.S. at 654, 113 S.Ct. at 2711.  

      15   Id. , 564 U.S. at 661-62, 113 S.Ct. at 2715.  

                                                                       -  7 -                                                                 2653

----------------------- Page 8-----------------------

                               JusticeGinsburgacknowledged                                               that it was unlikely                       that theoriginal                     analyst  

would still have a specific memory of testing the blood sample in Bullcoming's case, but                                                                                                          

she pointed out that requiring the analyst to testify in person would give Bullcoming's                                                                                   

defense attorney the opportunity to question the analyst in front of the jury concerning                                                                                       


his proficiency, care, and veracity.                                                   


                               Based on the content of Justice Ginsburg's lead opinion, Robbins argues  


that Bullcoming effectively overruled key portions of this Court's decision in Vann.  In  


particular, Robbins argues that, in light of Bullcoming, an expert witness is prohibited  


from testifying that another forensic analyst followed proper testing procedures, or that  


this other analyst obtained accurate test results.  


                               But  even  though  Justice  Ginsburg's  lead  opinion  offers  several  good  


reasons for requiring live testimony from the forensic analyst who actually performed  


the testing, most courts have not read Bullcoming so broadly.  


                               The facts of Bullcoming presented a relatively easy confrontation issue -  


because, unlike the situation presented in  Vann, the expert witness who testified at  


Bullcoming's trial had absolutely no connection either to the testing of Bullcoming's  


blood or to the review and analysis of the test results.  Perhaps because of this, Justice  


Sotomayor concurred in the result of Bullcoming, but she wrote a separate opinion in  


which she emphasized what the Supreme Court was not deciding.  


                               First, Justice Sotomayor noted that Bullcoming did not involve a blood test  

that was performed for medical reasons or for some other purpose apart from criminal  



        16     Id. , 564 U.S. at 661 n. 7, 113 S.Ct. at 2715 n. 7. 

        17     Bullcoming  (concurrence of Justice Sotomayor), 564 U.S. at 672, 113 S.Ct. at 2722.

                                                                                               -  8 -                                                                                          2653

----------------------- Page 9-----------------------

                       Second, she noted that                   Bullcoming  was "not a case in which the person                           

testifying is a supervisor, reviewer, or someone else with a personal, albeit limited,                                                  


connection to the scientific test at issue."                                 


                       Third, Justice Sotomayor noted that Bullcoming was not a case in which an  


expert witness was asked for their "independent opinion about underlying testimonial  



reports that were not themselves admitted into evidence."  


                       And finally, Justice Sotomayor noted that Bullcoming  did not involve a  


situation where the government introduced the raw data obtained through testing and  



then asked an expert witness to analyze or interpret this data.  


                       Most courts have concluded that Justice Sotomayor's concurrence limits  



the holding in Bullcoming.                           We agree with this assessment.   And based on Justice  


Sotomayor's concurrence, we conclude that the confrontation clause did not prohibit the  


testimony offered by Andrew Gingras at Robbins's trial.  


                       As we have explained, Justice Sotomayor pointed out in her concurrence  


that Bullcoming does not announce a rule for situations where the testifying witness is  


"a supervisor, reviewer, or someone else with a personal, albeit limited, connection to  


the  scientific  test  at  issue."                   Our  decision  in  Vann involved  such  a  situation,  and  


Robbins's case does too.  

      18   Id. , 564 U.S. at 672-73, 113 S.Ct. at 2722.  

      19   Id. , 564 U.S. at 673, 113 S.Ct. at 2722.  

      20   Id. , 564 U.S. at 673-74, 113 S.Ct. at 2722.  

      21   See, e.g., United States v. Summers, 666 F.3d 192, 200, 203 (4th Cir. 2011); Marshall  

v. People, 309 P.3d 943 (Colo. 2013), cert. denied sub nomine Marshall v. Colorado, 572  


U.S. 1136, 134 S.Ct. 2661, 189 L.Ed.2d 212 (2014); Disharoon v. State, 727 S.E.2d 465, 467  

(Ga. 2012); Jenkins v. State , 102 So.3d 1063, 1066-67 (Miss. 2012); State v. Watson, 185  


A.3d 845, 854-55 (N.H. 2018); Commonwealth v. Yohe, 39 A.3d 381, 388 (Pa. App. 2012);  


State v. Lopez, 45 A.3d 1, 13 (R.I. 2012).   

                                                                      -  9 -                                                                 2653

----------------------- Page 10-----------------------

                                                  As we have explained, the testing in Robbins's case was performed by two                                                                                                                                                                                              

forensic analysts:                                                  Gingras tested Robbins's blood for Xanax, and Lindsay Lowe tested                                                                                                                                                                           

Robbins's blood for Soma (and its metabolite, meprobamate).                                                                                                                                                                                 

                                                  When Gingras testified as the State's expert witness at Robbins's trial, he                                                                                                                                                                                                

did not claim to be Lowe's "supervisor" in the sense of being hierarchically above her                                                                                                                                                                                                                                    

within the management structure of the crime laboratory.                                                                                                                                                                 But Gingras testified that he                                                                       

was the forensic analyst who was personally assigned to Robbins's                                                                                                                                                                                                             case.    Gingras  

explained that, even though Lowe conducted certain aspects of the testing (                                                                                                                                                                                                                           i.e., the   

testing to determine the precise level of Soma in Robbins's blood), Lowe's test results                                                                                                                                                                                                                      

were forwarded to Gingras, and Gingras was responsible for reviewing those test results                                                                                                                                                                                                                       

and certifying them (along with his own test results) as the official test results obtained                                                                                                                                                                                                          

by the Toxicology Laboratory.                                                                                         

                                                   Giventhesecircumstances, weconcludethatGingras                                                                                                                                                     could properly testify                                   


regarding the results of the Soma testing performed by Lowe.                                                                                                                                                                                       


                                                  We acknowledge that our resolution of this issue might appear to be at odds  


with our decision in McCord v. State, 390 P.3d 1184 (Alaska App. 2017).  But, in fact,  


the same legal principle underlies our decisions in McCord and in the present case.  


                                                  As in the present case, the testing of McCord's blood was performed at the  


Washington State Toxicology Laboratory, and the evidence regarding the presence and  


amountofthecontrolled substancein McCord's bloodwasofferedthrough thetestimony  


of a forensic analyst (Lisa Noble) employed by that laboratory. But although Noble was  


assigned  to  McCord's  case,  and  although  she  conducted  the  initial  screening  of  


McCord's blood sample, it was another analyst (Sarah Swenson) who performed the  

             22          Accord , Marshall v. People , 309 P.3d 943, 949 (Colo. 2013), cert. denied, 572 U.S.  

 1136, 134 S.Ct. 2661, 189 L.Ed.2d 212 (2014); Jenkins v. State , 102 So.3d 1063, 1069 (Miss.  

2012); State v. Watson, 185 A.3d 845, 856-860 (N.H. 2018).  

                                                                                                                                                        -  10 -                                                                                                                                                       2653

----------------------- Page 11-----------------------

testing that confirmed the presence and the amount of clonazepam, which turned out to                                                                    


be the only controlled substance in McCord's blood.                                                  


                        Noble only knew of the clonazepam in McCord's blood because she read  



                                                And Swenson was assigned to perform this testing because  

Swenson's test results.  


Noble  herself  was  not  certified  to  perform  testing  for  that  class  of  controlled  




                        Thus, whileNoblemay have"reviewed"Swenson's testresults in the sense  


that Swenson's results were reported to Noble, Noble was not personally certified to  


perform this testing, and it is unclear to what extent Noble was able to independently  


analyze a test that she herself was not certified to perform - or to what extent Noble  


couldmeaningfully answer thequestionsthat McCord'sattorneymight haveposed about  


the testing process.  Based on this record, we held that McCord's right of confrontation  


was violated when the State introduced the evidence of the clonazepam in McCord's  




blood through the testimony of Noble, rather than calling Swenson as a witness.  


                        In Robbins's case, on the other hand, there was no dispute that Gingras  


could have tested Robbins's blood for Soma as well as for Xanax.  The task of testing  


Robbins's blood for Soma was assigned to another analyst simply to divide the labor,  

and Gingras testified that, based on his review of the test data, he would have reached  


the same conclusions about the contents of Robbins's blood.  Given this evidentiary  


record,  Gingras's  testimony  about  the  results  of  the  Soma  testing  did  not  violate  


Robbins's right of confrontation.  

      23    McCord , 390 P.3d at 1185, 1186.  

      24    Id. at 1186.  

      25    Id. at 1185.  

      26    Id. at 1186.  

                                                                         -  11 -                                                                    2653

----------------------- Page 12-----------------------


                      The judgement of the district court is AFFIRMED.                                                                                                                              

                                                                                                                -  12 -                                                                                                                                     2653

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights