This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2478

 

State of Minnesota,
Respondent,

vs.

Mark R. Sickmann,
Appellant.

 

Filed December 12, 2006

Reversed and remanded

Huspeni, Judge^*

 

 

Sherburne County District Court

File No. TX-04-8980

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Kathleen A. Heaney, Sherburne County Attorney, Sean S. Dillon, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN  55330 (for respondent)

 

Kevin W. DeVore, Charles A. Ramsay, Ramsay & Devore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN  55113 (for appellant)

 

 

Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

In this appeal from conviction of DWI, appellant argues that his rights under the Confrontation Clause were violated when the person who withdrew his blood was not called to testify.  We agree, and reverse and remand for a new trial.

FACTS

On October 9, 2004, Sherburne County Deputy Sheriff Chad Edwards responded to a citizen complaint of an erratic driver.  Edwards ran the license plate number, learned the address of the registered owner, and drove to appellant Mark Rueben Sickmann’s house, arriving there at about 10:45 p.m.  Edwards noticed the vehicle parked normally in the driveway.  Sickmann approached Edwards and admitted driving the vehicle.  He was polite, cooperative, and obeyed all of Edwards’s commands.  Edwards detected the odor of alcohol coming from Sickmann’s breath and noticed that he had bloodshot eyes.  Sickmann first denied consuming alcohol prior to driving home, then admitted to consuming “one or two beers” and later admitted to drinking “two beers and some wine.”  He denied consuming any alcohol since arriving home.

Edwards conducted a field sobriety test and observed that Sickmann had all six indicators of impairment on the horizontal-gaze nystagmus test, three indicators of impairment in the one-legged-stand test, and two indicators of impairment in the walk-and-turn test.  Edwards subsequently arrested Sickmann for misdemeanor driving while impaired (DWI) and transported him to jail. 

Upon arrival at jail, Edwards read the implied-consent advisory to Sickmann, who then consented to the test.  There was a problem with the Intoxilyzer, however, so Edwards offered Sickmann an alternative.  Sickmann consented to a blood test and was transported to the Monticello Hospital, where  Debra Collier withdrew Sickmann’s blood, and signed a document attesting to being qualified under Minn. Stat. § 169A.51, subd. 7 (2004).  The document indicates that Collier withdrew blood at 12:50 a.m.

Sickmann was transported back to jail along with the vials of blood.  Edwards placed the vials in an evidence locker.  On October 28, 2004, Edwards received notice that the blood contained an alcohol concentration of .15.  Sickmann was charged with driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004), and driving with an alcohol concentration of .10 or more as measured within two hours of driving, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2004).[1]

At trial, Edwards testified, over objection, that the vials remained in the locker until mailed by the evidence technician.  Joseph Yoch, a scientist employed by the Bureau of Criminal Apprehension (BCA), testified at trial that he received and analyzed the vials of blood, and that the results revealed an alcohol concentration of .15. 

A jury found Sickmann guilty of both offenses with which he was charged.  This appeal follows.

D E C I S I O N

Generally, evidentiary rulings—including the admission of chemical or scientific test reports—are within the discretion of the district court and will not be reversed absent a clear abuse of discretion.  But whether the admission of evidence violates a defendant’s rights under the Confrontation Clause is a question of law this court reviews de novo. 

 

State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006) (citations omitted).

Sickmann argues that under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the state’s ability to admit certificates and test evidence without corresponding witnesses available is limited.  Crawford mandated that all testimonial statements be excluded unless the declarant is unavailable to testify at trial and the defendant had prior opportunity to cross-examine the declarant.  541 U.S. at 68, 124 S. Ct. at 1374. 

Sickmann argues that his rights under the Confrontation Clause were violated because he was not able to confront the hospital employee who took his blood.  He contends that his blood was not withdrawn by a qualified person pursuant to Minn. Stat. § 169A.51, subd. 7(a) (2004), and that the state failed to call the person to testify, and, therefore, did not meet its burden of proof in establishing that the test was reliable and its administration conformed to the procedure necessary to ensure reliability. 

We first address the question of whether the certificate from Debra Collier was testimonial.  The supreme court, in the recent case of State v. Caulfield, applied Crawford in addressing the admissibility of a BCA lab report without the lab technician present at trial.  The court held that the BCA “report is testimonial and that its admission, under the statute permitting its introduction without the testimony of the analyst, violated Caulfield’s rights under the Confrontation Clause.”  Caulfield, 722 N.W.2d at 307. 

The state argues here that, in contrast to the BCA report, the certificate of the person drawing blood is not testimonial, but is more akin to a business record.  The state, in urging this court to distinguish between the medical-personnel certificate and the BCA report discussed in Caulfield, has the burden to prove that the certificate is not testimonial.  See State v. Burrell, 697 N.W.2d 579, 600 (Minn. 2005) (discussing state’s burden of proving that admission of hearsay statement does not violate defendant’s Sixth Amendment rights) (citing State v. King, 622 N.W.2d 800, 807 (Minn. 2001)). 

While the Supreme Court in Crawford declined to offer a comprehensive definition of “testimonial,” it did outline three general categories of testimonial statements:

[E]x parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

 

541 U.S. at 51-52, 124 S. Ct. 1364 (quotations and omitted).

It is undisputed that the medical personnel certificate was offered as evidence and Sickmann objected.  The state, in contending that the certificate was offered merely as collateral evidence of the reliability of the blood test, is asking this court to make a distinction that we are unable to make.  The supreme court in Caulfield found persuasive the line of cases that have held that lab reports are testimonial under Crawford.  Included in that list is a decision finding that parts of an “affidavit related to maintenance of [a] breathalyzer were testimonial because they were statements one would reasonably expect to be used prosecutorially and were made in circumstances that would lead an objective witness to reasonably believe the statements would be available for trial.”  Caulfield, 722 N.W.2d at 310 (citing Shiver v. State, 900 So. 2d 615, 618 (Fla. Dist. Ct. App. 2006)). 

By analogy, the medical-personnel certificate would also be considered testimonial because it contains statements that one would reasonably expect to be used prosecutorially and be available for trial.  A line of cases exists supporting the importance of the person who withdraws blood for the purpose of determining the presence of alcohol or controlled substances being qualified under the predecessor to Minn. Stat. § 169A.51, subd. 7(a).  See State v. Pearson, 633 N.W.2d 81, 84 (Minn. App. 2001) (affirming district court finding that a medical laboratory assistant is authorized to withdraw blood); Bortnem v. Comm’r of Pub. Safety, 610 N.W.2d 703, 706 (Minn. App. 2000) (concluding that police officer, who was also a paramedic, not authorized to withdraw blood), review denied (Minn. July 25, 2000); Olson v. Comm’r of Pub. Safety, 513 N.W.2d 491, 493-94 (Minn. App. 1994) (concluding that a liberal construction of the statute does not exclude a phlebotomist whose only duty was to draw blood).

The person who withdraws blood is an important part of the creation and preservation of evidence in a proceeding such as this, and the medical-personnel certificate is a critical aspect of evidence.  The medical-personnel certificate indicates that a medical-laboratory technician withdrew a blood sample at the request of a peace officer and that the person who withdrew the blood was authorized to do so under the applicable statute.  The medical-laboratory technician in this case attested to her qualifications, and under Minn. Stat. § 169A.51, subd. 7(a), only authorized people are permitted to withdraw blood samples.  Thus, we conclude that the medical-personnel certificate is testimonial, and under Caulfield, its admission, under the statute permitting its introduction without the testimony, violated Sickmann’s rights under the Confrontation Clause.

The state also argues, however, that Sickmann waived his right under the Confrontation Clause by failing to comply with Minn. Stat. § 634.15, subd. 2 (2004), which states that

an accused person or the accused person’s attorney may request, by notifying the prosecuting attorney at least ten days before the trial, that the following persons testify in person at the trial on behalf of the state:

(a) A person who performed the laboratory analysis or examination for the report described in subdivision 1, clause (a);  or

(b) A person who prepared the blood sample report described in subdivision 1, clause (b).[2]

 

In Caulfield, the supreme court specifically addressed Minn. Stat. § 634.15 (2004) and found that it violated the Confrontation Clause.  The court concluded:

At a minimum, any statute purporting to admit testimonial reports without the testimony of the preparer must provide adequate notice to the defendant of the contents of the report and the likely consequences of his failure to request the testimony of the preparer.  Otherwise, there is no reasonable basis to conclude that the defendant’s failure to request the testimony constituted a knowing, intelligent, and voluntary waiver of his confrontation rights. 

 

Caulfield, 722 N.W.2d at 313.  The court stated that the statute “does not require adequate notice to the defendant” and, therefore, violates the Confrontation Clause.  Id.  Thus, Caulfield effectively resolves the argument of waiver against the state.  Under the Caulfield analysis, Sickmann cannot be held to have knowingly, intelligently, and voluntarily waived his confrontation rights.

We recognize that constitutional error does not mandate a reversal and a new trial if that error is determined to be harmless beyond a reasonable doubt.  State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997).  The state contends that even if error occurred here, it was harmless and the evidence supports a guilty verdict.  See State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (stating that a new trial not required if state can show beyond a reasonable doubt that error was harmless).  Without the medical-personnel certificate in evidence, however, the blood sample would not be admissible.  The evidence would consist of testimony from the concerned citizen that Sickmann was swerving his truck toward her vehicle and almost hit her; testimony from Edwards regarding his conduct of a field sobriety test and the numerous indictors of alcohol consumption and impairment; Sickmann’s admission to being the driver, and Sickmann’s statement that he consumed alcohol before driving.

In Caulfield, the supreme court noted that harmless-error analysis is not a matter of “analyz[ing] whether a jury would have convicted the defendant without the error, [but] rather . . . whether the error reasonably could have impacted upon the jury’s decision.”  Caulfield, 722 N.W.2d at 314 (alterations and omission in original) (quoting Juarez, 572 N.W.2d at 292).  The court noted that the evidence relied on by the state was Caulfield’s admission to the police and two field tests of the substance (both determined it to be a controlled substance). 

Although these are clearly sufficient to support the finding of guilt, they each are of lesser persuasive quality than the lab report, which was relied on by the state to be the definitive evidence of the identification of the substance as cocaine.  We conclude that the erroneous admission of the report was not harmless beyond a reasonable doubt.

 

Caulfield, 722 N.W.2d at 317.

Sickmann was convicted of driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) (2002), and driving with an alcohol concentration of .10 or more as measured within two hours of driving in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002).  Without the blood sample or the testimony from the state’s expert who analyzed the blood sample and concluded that it contained an alcohol concentration of .15, the remaining evidence is not clearly sufficient to support the finding of guilt.  Therefore, we cannot conclude that the erroneous admission of the medical-personnel certificate was harmless error beyond a reasonable doubt.   Because Sickmann’s right to confrontation was violated,  we reverse and remand for a new trial.

Sickmann also asserts that the district court abused its discretion in allowing the state’s expert, Joseph Yoch, to testify regarding the utilization of retrograde extrapolation to determine the alcohol concentration within two hours of driving.  Because this issue may arise at the retrial of this matter, we address the merits of the challenge raised.  The district court has broad discretion to admit expert testimony.  State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn. 2003).   Expert testimony generally is admissible if (1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for unfair prejudice.  State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989).  A reasonable basis exists where an expert’s opinion is probably true; mathematical or absolute certainty is not required.  State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992), review denied (Minn. May 15, 1992).  On the record before us, we conclude that Sickmann has failed to show how the trial court abused its discretion in admitting the challenged testimony.  The challenge raised by Sickmann goes more to the weight to be given to the challenged testimony than to its admissibility.  See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (stating that the credibility of witnesses and weight given to their testimony are determinations made by fact-finder).

Having determined that this matter is to be reversed and remanded for a new trial, it is not necessary for us to address the remaining issues raised by Sickmann.  Nonetheless, we note that his constitutional argument of coercion fails because it was addressed and resolved contrary to his position in State v. Mellett, 642 N.W.2d 779, 784-85 (Minn. App. 2002), review denied (Minn. July 16, 2002).  Additionally, Sickmann argues that State v. Banken, 690 N.W.2d 367, 371 (Minn. App. 2004), review denied (Minn. Mar. 29, 2005), was incorrectly decided and urges that it be reversed.  We decline the invitation.   Published decisions of this court acquire precedential value unless the supreme court grants review and does not affirm.  State v. Collins, 580 N.W.2d 36, 43 (Minn. App. 1998), review denied (Minn. July 16, 1998).  Therefore, this court does not have the authority to overrule a previously decided case.

Reversed and remanded.