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					Citation               Court          Date        Published?   Summary                      Evidence                    Status of Case
                                                               Appeal from conviction for   Testimony by child's aunt
                                                               sexual abuse of a child.     and police officer
D.G. v. Louisiana                                              Child does not testify.      regarding child's           judgment vacated, remanded
(2010) 2010 U.S.       U.S. Supreme                            (State ex rel. D.G. (2009)   statements/Videotape of     to Court of Appeal of
LEXIS 2144             Court          Mar. 1, 2010 Y           11 So. 3d 548)               interview with child        Louisiana

                                                               Appeal from drug offense
Moore v. Ohio (2010) U.S. Supreme                              convictions (State v. Moore                              judgment vacated, remanded
2010 U.S. LEXIS 2024 Court            Mar. 1, 2010 Y           (2008) 2008 Ohio 2359)      drug certificates            to Court of Appeal of Ohio
                                                               Appeal from drug offense
Briscoe v. Virginia                                            convictions (Magruder v.
(2010) 175 L.Ed.2d     U.S. Supreme   Jan. 25,                 Commonwealth (2008) 275                                  judgment vacated, remanded
966                    Court          2010        Y            Va. 283)                    drug certificates            to Supreme Court of Virginia
Aguilar v. Virginia
(2010) 2010 U.S.       U.S. Supreme   Jan. 25,                                                                          judgment vacated, remanded
LEXIS 857              Court          2010        Y            Not available on Lexis       Not available on Lexis      to Supreme Court of Virginia
                                                                                                                        vacate judgment and remand
                                                                                                                        to 9th Circuit. subsequent
                                                                                          affidavit stating that        history: United States v.
Norwood v. United                                              Appeal from conviction of  defendant had no              Norwood (2010) 2010 U.S.
States (2009) 130 S.   U.S. Supreme                            possession of cocaine with legitimate source of          App. LEXIS 3042 (see row 71,
Ct. 491                Court          Nov. 2, 2009 Y           intent to distribute       income                        below)

                                                                                                                        judgment vacated, remanded
                                                                                                                        to Appeals Court of
                                                               Appeal from conviction of                                Massachusetts. Subsequent
                                                               distribution of cocaine (see                             history Commonwealth v.
Hamilton v.                                                    Commonwealth v.                                          Hamilton, 2010 Mass. App.
Massachusetts (2009) U.S. Supreme                              Hamilton, 2009 Mass. App.                                Unpub. LEXIS 62, see row
130 S. Ct 216        Court            Oct. 5, 2009 Y           Unpub. LEXIS 181)            drug certificates           208, below.)

Morales v.                                                                                                              judgment vacated, remanded
Massachusetts (2009)   U.S. Supreme   Jun. 29,                 Appeal from conviction for                               to Appeals Court of
129 S. Ct. 2858        Court          2009        Y            weapons charges              ballistics certificate      Massachusetts
Barba v. California                                                                                                     judgment vacated, remanded
(2009) 2009 U.S.       U.S. Supreme   Jun. 29,                                                                          to Court of Appeal of
LEXIS 4955             Court          2009        Y            Not available on Lexis       Not available on Lexis      California
Citation               Discussion


D.G. v. Louisiana
(2010) 2010 U.S.
LEXIS 2144             n/a


Moore v. Ohio (2010)
2010 U.S. LEXIS 2024 n/a

Briscoe v. Virginia
(2010) 175 L.Ed.2d
966                    n/a
Aguilar v. Virginia
(2010) 2010 U.S.
LEXIS 857              n/a



Norwood v. United
States (2009) 130 S.
Ct. 491                n/a




Hamilton v.
Massachusetts (2009)
130 S. Ct 216        n/a

Morales v.
Massachusetts (2009)
129 S. Ct. 2858      n/a
Barba v. California
(2009) 2009 U.S.
LEXIS 4955           n/a
Citation                Court                 Date       Published?   Summary                          Evidence                   Status of Case
                                                                                                                                  judgment vacated, remanded
                                                                                                                                  to Appeals Court of
                                                                                                                                  Massachusetts; subsequent
                                                                                                                                  history: Commonwealth v.
Pimentel v.                                                                                                                       Pimentel (2010) 76 Mass.
Massachusetts (2009) U.S. Supreme             Jun. 29,                Appeal from conviction of                                   App. Ct. 236 (see row 198
129 S. Ct. 2857      Court                    2009       Y            drug related offenses            drug certificates          below)
                                                                                                                                  judgment vacated, remanded
                                                                                                                                  to Appeals Court of
                                                                                                                                  Massachusetts; subsequent
Rivera v.                                                                                                                         history: Commonwealth v.
Massachusetts (2009) U.S. Supreme             Jun. 29,                Appeal from conviction of                                   Rivera, 76 Mass. App. Ct. 67
129 S. Ct. 2857      Court                    2009       Y            drug related offenses            drug certificates          (see row 214 below)
                                                                                                                                  judgment vacated, remanded
                                                                                                                                  to Supreme Court of Ohio;
                                                                                                                                  Court of Appeals decision
                                                                                                                                  vacated by State v. Crager
                                                                      Appeal from conviction of                                   (2009) 123 Ohio St. 3d 1210
                                                                      homicide based on DNA                                       (see row 289, below). Final
Crager v. Ohio (2009)   U.S. Supreme          Jun. 29,                analysis (State v. Crager                                   decision from trial court
129 S. Ct. 2856         Court                 2009       Y            (2007) 116 Ohio St. 3d 369) DNA report                      pending

                                                                      Appeal from conviction of
United States v. Nueci-                                               possession of narcotics on
Pena (2010) 2010 U.S. 1st Circuit, District   Feb. 26,                board a vessel subject to        Certifications regarding   judgment affirmed. Melendez-
Dist LEXIS 17594        of Puerto Rico        2010       Y            jurisdiction of United States.   vessel's nationality       Diaz not applicable
                                                                      Motion for reconsideration
                                                                      for return of property.
                                                                      Government files affidavit                                 Affidavit not admissible under
                                                                      as its response. Order had                                 Melendez-Diaz, but motion for
USA v. Hervis (2010) 1st Circuit, District    Feb. 10,                already been vacated prior       "Affidavit" which was not reconsideration dismissed as
U.S. Dist. LEXIS 12026 of New Hampshire       2010       N            to this decision.                properly sworn to         moot.
Citation                 Discussion




Pimentel v.
Massachusetts (2009)
129 S. Ct. 2857      n/a



Rivera v.
Massachusetts (2009)
129 S. Ct. 2857      n/a




Crager v. Ohio (2009)
129 S. Ct. 2856         n/a
                        "defendant argued that the certifications of Commander Welzant regarding inquiries made to Colombia and to Venezuela submitted by
                        the government in support of its view that the vessel was one without a nationality fell squarely within the core class of testimonial
United States v. Nueci- statements listed in Crawford. Additionally, movant argues that the recent case of Melendez-Diaz . . . strongly supports his contention
Pena (2010) 2010 U.S. that the Welzant declarations meet the Crawford criteria." Court decides that the right to confrontation is a trial right and the jurisdictional
Dist LEXIS 17594        issue needed to be raised prior to trial. Melendez-Diaz did not change this.

                       "Although the 'affidavit' submitted by the government states that Morse was duly sworn, his statement was not sworn to or affirmed
                       before a notary public or another officer authorized to administer oaths. See, e.g., Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,
                       2532; [citation]. Because the statement was not signed under penalty of perjury, it does not comply with the requirements of 28 U.S.C. §
USA v. Hervis (2010) 1746. Therefore, the statement submitted by the government does not meet the requirements of an affidavit, and the response is not
U.S. Dist. LEXIS 12026 supported by other competent evidence."
Citation                Court                   Date        Published?   Summary                      Evidence                     Status of Case



                                                                         Appeal from conviction for
                                                                         immigration related
                                                                         offenses based in part on    Printout from ATS            records are not testimonial;
USA v. Huete-                                                            printout from government     database regarding           Melendez-Diaz not applicable;
Sandoval (2010) 2010 1st Circuit, District                               database regarding his       defendant's entry into the   motion for judgment of
U.S. Dist. LEXIS 12784 of Puerto Rico           Feb. 3, 2010 Y           entry to the United states   United States                acquittal is denied


Likely v. Ruane (2010)                                                   Habeas petition from
2010 U.S. Dist. LEXIS 1st Circuit, District                              defendant convicted of drug                               petition for writ of habeas
8656                   of Massachusetts         Feb. 2, 2010 Y           related offenses.           drug certificates             corpus is denied

                                                                         Appeal from denial of a
USA v. Wu (2010)                                                         motion to compel from       Certificate regarding  Court notes in dicta that
2010 U.S. Dist LEXIS    1st Circuit, District   Jan. 27,                 defendants charged with     whether weapons are on Melendez-Diaz applies to
6387                    of Massachusetts        2010        Y            unlawful export of weapons. controlled list        these certificates

                                                                         Habeas petition for
                                                                         defendant convicted of drug                               Petition for Habeas Corpus
Garcia v. Roden (2009)                                                   charges. Counsel failed to                                denied, even though evidence
2009 U.S. Dist. LEXIS 1st Circuit, District                              raise Confrontation Clause                                should not have been
114452                 of Massachusetts         Dec. 3, 2009 Y           issue at trial level.       drug certificates             admitted under Crawford.
                                                                                                                                   Melendez-Diaz not applicable.
                                                                                                                                   Santiago v. McEachern (D.
                                                                                                     testimony by police           Mass. 2009) 620 F. Supp. 2d
Santiago v. McEachern                                                    Habeas petition for         officer that he had           207, adopts recommendation
(2009) 620 F.Supp.2d 1st Circuit, District                               defendant convicted of drug received complaints of        dismissing writ of habeas
207                   of Massachusetts          Apr. 9, 2009 Y           related offenses            drug activity in area         corpus


United States v.                                                                                      Certificate of               Melendez-Diaz applies to
Madarikan (2009) 2009                                                                                 Nonexistance of Record       certificates in question;
U.S. App. LEXIS                                 Dec. 16,                 Appeal from conviction for   (for permission to reenter   conviction upheld because
27446                 2nd Circuit               2009        N            illegal reentry              US)                          error was harmless
Citation                 Discussion

                         "Defendant falls short of convincing the Court to extend the holding [of Melendez-Diaz] to necessarily classify as testimonial records
                         kept by the U.S. Customs and Border Protection agency as a matter of course pursuant to their duty under law to maintain such
                         records.... Melendez-Diaz did not decide the issue of whether data compiled by a government agency during routine, cross-the-board
                         screenings conducted pursuant to its duty under the law presented a Confrontation Clause concern. Rather, that case ruled that an
                         affidavit created post-arrest specifically for the purposes of prosecuting a criminal defendant presented a Confrontation Clause issue.
USA v. Huete-            No such circumstances exist here. Despite his assertions to the contrary, Defendant is actually inviting the Court to extend the Supreme
Sandoval (2010) 2010     Court's holding in Melendez-Diaz to encompass data compiled as part of a routine exercise by a government agency which was later
U.S. Dist. LEXIS 12784   presented at evidence at a criminal trial. The Court expressly declines this invitation. (8-9.)
                         Under AEDPA, standard of review is whether state court's interpretation of Crawford is unreasonable. Court rules that it was not. It was
                         not objectively unreasonable to determine that the certificates of analysis were non-testimonial because they were analogized to
Likely v. Ruane (2010)   business or official records. "To be sure, in light of the majority opinion in Melendez-Diaz, the SJC's conclusion turned out to be
2010 U.S. Dist. LEXIS    erroneous, at least according to five justices. Melendez-Diaz, 129 S. Ct. at 2532 [quotation]. The fact that the SJC erred, however, does
8656                     not make the error objectively unreasonable. [citation]."

                       "Court briefly addresses the Confrontation Clause argument raised by Defendants in their motion with respect to the use of a signed
USA v. Wu (2010)       certificate at trial to prove that the items allegedly exported were on the Munitions List and/or the Commerce Control List at the time they
2010 U.S. Dist LEXIS   were exported. . . . Because the government cannot rely on the introduction of a certificate alone to meet its burden of proof under the
6387                   Confrontation Clause, this expert testimony is constitutionally required. See Melendez-Diaz v. Massachusetts." (10-11.)
                       Melendez-Diaz renders unconstitutional the decision of the Massachusetts Supreme Judicial Court in Verde, and, it follows, taints the
                       analysis of the Appeals Court in Garcia's case. Under Crawford, the certificates are, and regardless of Massachusetts case law were,
                       testimonial. Garcia thus had the right to confront the chemist. Unlike Melendez-Diaz, however, Garcia's counsel never sought actually to
Garcia v. Roden (2009) confront the chemist. The burden of raising the Confrontation Clause objection is always on defendant. Melendez-Diaz, 129 S. Ct. at
2009 U.S. Dist. LEXIS 2541." (29-30.) Fact that trial attorney did not raise confrontation issue is not ineffective assistance of counsel because no prejudice is
114452                 shown.



Santiago v. McEachern "The Supreme Court may further explicate the precise contours of the law of the Confrontation Clause in the case of Commonwealth v.
(2009) 620 F.Supp.2d Melendez-Diaz, but whatever further explication is forthcoming would not change the result in the instant case [because statement in
207                   question is not hearsay]."

                      "Madarikan argues that, because she had no opportunity to cross-examine the government employee who generated
United States v.      the CNR, admission of that document into evidence was a violation of the Confrontation Clause under Crawford v.
Madarikan (2009) 2009 Washington, []. In light of the Supreme Court's recent holding in Melendez-Diaz v. Massachusetts, []), the
U.S. App. LEXIS       government concedes the existence of a Confrontation Clause violation but maintains that the error was harmless. We
27446                 agree [because the defendant conceded at trial that she did not request permission to reenter the country." (5.)
Citation                 Court                Date         Published?   Summary                        Evidence                   Status of Case
                                                                                                                                  Motion denied; confrontation
                                                                                                                                  clause not violated where
United States v. Boyd                                                   Motion for new trial for                                  expert who undertook final
(2010) 2010 U.S. Dist. 2nd Circuit,                                     defendant convicted of                                    stage of DNA analysis is
LEXIS 18511            S.D.N.Y                Mar. 1, 2010 Y            bank robbery                   DNA report                 called to the stand.




Brewster v. New York                                                    Petition for habeas corpus
(2010) 2010 U.S. Dist.   2nd Circuit,         Jan. 21,                  for defendant convicted of                                petition denied; Melendez-
LEXIS 4660               E.D.N.Y              2010         Y            burglary                       DNA report                 Diaz not violated
Brewster v. New York
(2010) 2010 U.S. Dist.   2nd Circuit,
LEXIS 887                E.D.N.Y              Jan. 6, 2010 Y            See above                      ""                         ""

Sanders v. United                                                       Motion to vacate sentence      Opportunity to cross-
States (2009) 2009     2nd Circuit,                                     of felon convicted of          examine witnesses (not     motion denied; Melendez-Diaz
U.S. Dist. LEXIS 64222 E.D.N.Y                Jul. 27, 2009 Y           possession of a firearm        called by government)      not applicable




Government of the V.I.                                                                             Medical report regarding
v. Vicars (2009) 340                                                    Appeal from an attempted sexual abuse               Melendez-Diaz applicable;
Fed. Appx. 807         3rd Circuit            Aug. 7, 2009 N            aggravated rape conviction examination              conviction reversed

United States v. Mitan                                                                                 Out-of-court arbitration
(2009) 2009 U.S. Dist.                                                  Evidentiary rulings during     statements by co-
LEXIS 101213           3rd Circuit, E.D. Pa   Oct. 3, 2009 Y            criminal trial                 defendants                 Melendez-Diaz not applicable.
Polanco v. Varano                                                       Motion to amend habeas
(2009) 2009 U.S. Dist.                                                  corpus petition to include a                              Motion is denied because
LEXIS 102556           3rd Circuit, E.D. Pa   Nov. 2, 2009 Y            Melendez-Diaz claim            Not available on Lexis     petition is time-barred
Louder v. Coleman                                                       Petition for habeas corpus
(2009) 2009 U.S. Dist.                        Oct. 21,                  for defendant convicted of                                petition dismissed for lack of
LEXIS 115160           3rd Circuit, W.D.Pa    2009         Y            murder                         Coroner's report           jurisdiction
Citation                 Discussion

                       "The limits of Melendez-Diaz are still being developed. The Court here holds only that where the defendant had ample opportunity to
United States v. Boyd confront the Government witness who undertook the final, critical stage of the DNA analysis, and where that witness was personally
(2010) 2010 U.S. Dist. familiar with each of the prior steps, testified that the analysis included safeguards to verify that errors would not result in a false
LEXIS 18511            positive, and demonstrated that the prior steps were essentially mechanical in nature, the Confrontation Clause is satisfied." (10-11.)
                       Petitioner tried to amend petition to add a claim based on Melendez-Diaz. The claim is without merit because: "First, any new rule
                       articulated in Melendez-Diaz would not apply retroactively. See, e.g., Louder v. Coleman, No. 09-1124, 2009 U.S. Dist. LEXIS 115122,
                       2009 WL 4893193, at *5 (W.D. Pa. Dec. 10, 2009). Moreover, despite petitioner's allegations to the contrary, the record is clear that the
                       government presented live testimony at petitioner's trial from several police officers and forensic scientists who testified regarding the
Brewster v. New York chain of custody of swabs taken from the burglary scenes and from petitioner. Moreover, Ms. Wyss, the scientist who actually
(2010) 2010 U.S. Dist. performed the DNA analysis that was introduced at petitioner's trial, appeared at trial, testified, and was cross-examined by petitioner's
LEXIS 4660             counsel. " (17-18.)
Brewster v. New York
(2010) 2010 U.S. Dist.
LEXIS 887              "'

Sanders v. United
States (2009) 2009     "Petitioner's [6th Amendment/Melendez-Diaz] claim is meritless because the government did not introduce evidence - testimonial or
U.S. Dist. LEXIS 64222 otherwise - from either of these two men and thus did not trigger petitioner's Sixth Amendment right to confrontation." (21.)
                       "Dr. Lockridge's report was clearly “testimonial” because it was prepared under circumstances that would lead an objective witness
                       reasonably to believe that it would be used prosecutorially at trial; indeed, Dr. Lockridge herself wrote on the release she caused T.V.'s
                       mother to sign as part of the report that photographs would be taken of T.V.'s body for the “purpose of providing medical evidence” and
                       that the photographs “may be submitted as evidence in court proceedings.” (Citation.) The trial court so found, stating that law
                       enforcement officers took T.V. to the clinic “for the purposes of investigation and potential … criminal litigation.” (Citation.) It was clear
                       even before Melendez-Diaz, which simply confirmed what Crawford had said regarding statements made with the expectation that they
                       would be used at trial, that the trial court — and the Appellate Division — should have known that Vicars's right of confrontation would
Government of the V.I. be violated were the report to be admitted. FN 5: Additionally, Melendez-Diaz leaves no doubt that Dr. Lockridge's report need not have
v. Vicars (2009) 340   specifically accused Vicars in order for her to be considered a “witness against” him for purposes of the Confrontation Clause. Melendez-
Fed. Appx. 807         Diaz, 129 S.Ct. at 2535. It is sufficient that the report was used to prove a fact necessary for his conviction."

United States v. Mitan
(2009) 2009 U.S. Dist.   Confrontation clause not violated when out-of-court statements that are sought to be admitted are co-conspirator statements pursuant
LEXIS 101213             to FRE 801(d)(2)(E) because those statements are not testimonial.
Polanco v. Varano
(2009) 2009 U.S. Dist.
LEXIS 102556             n/a
Louder v. Coleman        "Although not necessary to our disposition, we note that the Supreme Court has not made either Crawford or Melendez-Diaz
(2009) 2009 U.S. Dist.   retroactively applicable to cases, such as the instant one, on collateral review. (Citations.) Hence, it does not appear that the Court of
LEXIS 115160             Appeals would grant leave to file a second or successive habeas petition at this time." (15-16)
Citation                 Court         Date           Published?   Summary                     Evidence                 Status of Case




United States v.                                                                               tape-recorded phone     Melendez-Diaz not applicable;
Barraza (2010) 2010                    Feb. 19,                                                calls between defendant evidence in question was not
U.S. App. LEXIS 3302 4th Circuit       2010           N            Appeal of drug conviction   and witness             hearsay

United States v. Diaz-
Gutierrez (2009) 2009
U.S. App. LEXIS                                                    Appeal of conviction of
26562                    4th Circuit   Dec. 7, 2009 N              illegal reentry             warrant of deportation   Melendez-Diaz not applicable


                                                                                               expert opinions regarding Conviction affirmed; Melendez-
United States v.                                                   Appeal from drug            intercepted telephone     Diaz complied with at lower
Johnson (2009)           4th Circuit   Dec. 2, 2009 Y              convictions                 calls                     court level

United States v.
Jackson (2009) 2009
U.S. App. LEXIS                        Nov. 20,                                                                         conviction affirmed; evidence
25532                    4th Circuit   2009           N            Appeal from DUI conviction results of blood tests    is non-testimonial

                                                                                                                        conviction affirmed; Melendez-
                                                                                                                        Diaz does not apply. US
United States v. Gitarts                                           Appeal from conviction of                            Supreme Court certiorari
(2009) 341 Fed. Appx.                  Aug. 28,                    conspiracy to defraud the                            denied by Gitarts v. United
935                      4th Circuit   2009           N            United States              business records          States, 2010 U.S. LEXIS 1364
                                                                                                                        habeas dismissal affirmed; not
                                                                                                                        unreasonable application of
                                                                                                                        federal law for the court to
                                                                                                                        admit the statements. US
                                                                                                                        Supreme Court certiorari
                                                                   Appeal from dismissal of a testimony from            denied by Blount v. Hardy,
Blount v. Hardy (2009)                                             habeas petition from rape investigators regarding    2010 U.S. LEXIS 653 (U.S.,
337 Fed. Appx. 271     4th Circuit     Jul. 9, 2009   N            of a child conviction.     child victim's statements Jan. 19, 2010)
Citation             Discussion
                     "Barraza further contests the admission of his recorded conversations with Delagarza on the ground that Delagarza was not present for
                     cross-examination. He acknowledges that his objection at trial was that the voice on the tape was not him. He now claims that a
                     constitutional error occurred because he believes that he may benefit from the Supreme Court's decisions in Giles v. California, 128 S.
                     Ct. 2678, 171 L. Ed. 2d 488 (2008), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Both Giles and
United States v.     Melendez-Diaz deal with testimonial hearsay. Barraza's reliance on these cases is inapposite because Delagarza's recorded statements
Barraza (2010) 2010  were not hearsay as they were not offered to prove the truth of the matter asserted, but to provide a context for Barraza's statements."
U.S. App. LEXIS 3302 (8-9.)

United States v. Diaz-   Documents "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial . . .
Gutierrez (2009) 2009    are not testimonial." Melendez-Diaz. A warrant of deportation is "not made in anticipation of litigation[.] . . . [I]t is simply a routine,
U.S. App. LEXIS          objective cataloging of an unambiguous factual matter." [Citation.] We conclude, as have all Circuits to have considered the question,
26562                    that a warrant of deportation is nontestimonial and therefore "not subject to the requirements of the Confrontation Clause." (2.)
                         "In addition to providing independent judgments, the experts in this case were in fact subject to cross-examination, as required by the
                         Confrontation Clause. This availability for cross-examination sets the circumstances here apart from those presented in Melendez-Diaz.
                         . . . Here, however, both experts took the stand. Therefore, Martin and his co-defendants, unlike the defendant in Melendez-Diaz, had
United States v.         the opportunity to test the experts' "honesty, proficiency, and methodology" through cross-examination. Id. at 2538. And judging from the
Johnson (2009)           record, they did so effectively." (636.)

United States v.         Defendant's argument that judge erred by allowing into evidence of the results of his blood tests "is precluded by our recent decision in
Jackson (2009) 2009      United States v. Washington, 498 F.3d 225 (4th Cir. 2007), cert. denied, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). " United States v.
U.S. App. LEXIS          Washington stated that the raw data printed out by computers is not testimonial hearsay. Cert was denied in that case by Wash. v.
25532                    United States, 2009 U.S. LEXIS 4948 (U.S., June 29, 2009), not 129 S. Ct. 2527 (which is Melendez-Diaz).



United States v. Gitarts "Gitarts asserts that Melendez-Diaz requires 'the exclusion of business records and all other testimonial hearsay' . . . . However,
(2009) 341 Fed. Appx. because Melendez-Diaz explicitly reaffirms Crawford's holding that traditional business records are not testimonial evidence, we
935                      conclude that Melendez-Diaz does not advance Gitarts's position. [Citation.]" (940, fn. 2.)




                       "Under our review, the North Carolina Court of Appeals' conclusion that S.F.'s statements to her therapists were not "testimonial" is not
                       contrary to or an unreasonable application of federal law." (276.) "The latest signal from the Supreme Court suggests that the Sixth
Blount v. Hardy (2009) Amendment right to confrontation remains a powerful one. See Melendez-Diaz. Nevertheless, the lack of direction for dealing with
337 Fed. Appx. 271     today's facts leaves us without leeway to disagree with the North Carolina court and recognize the right." (278, Michael, J. concurring.)
Citation               Court               Date         Published?   Summary                       Evidence               Status of Case



                                                                                                                          habeas petition dismissed;
Wilbourn v. Johnson                                                  Habeas petition for                                  Melendez-Diaz claims
(2010) 2010 U.S. Dist.                                               defendant convicted of drug                          procedurally barred and not
LEXIS 19865            4th Circuit, W.D. Va Mar. 5, 2010 Y           charges                     drug certificates        available on collateral review




United States v.
Christie (2009) 2009                                                                            1) certificate of blood
U.S. Dist. LEXIS                                                                                tests 2) accuracy         conviction affirmed; Melendez-
113315                 4th Circuit, E.D. Va Dec. 3, 2009 Y           Appeal from DUI conviction certificate               Diaz not applicable




United States v.
Forstell (2009) 2009
U.S. Dist. LEXIS                            Nov. 16,                                            1) accuracy report 2)     conviction affirmed; Melendez-
116761                 4th Circuit, E.D. Va 2009        Y            Appeal from DUI conviction breath results report     Diaz not applicable

                                                                                                                          recommendation that habeas
                                                                                                                          petition be dismissed adopted
Blackmon v. Johnson                                                  Petition for writ of habeas                          by Blackmon v. Johnson,
(2009) 2009 U.S. Dist.                                               corpus for defendant          lab report (chain of   2009 U.S. Dist. LEXIS 118056
LEXIS 118059           4th Circuit, E.D. Va Nov. 5, 2009 Y           convicted of drug charges     custody)               (E.D. Va., Dec. 17, 2009)

Gomez v. United                                                      Appeal from sentencing for
States (2009) U.S.     4th Circuit,                                  guilty plea for conspiracy to                        appeal denied; Melendez-Diaz
Dist. LEXIS 109107     W.D.N.C.            Nov. 3, 2009 Y            commit kidnapping             n/a                    not applicable
Citation               Discussion
                       "Wilbourn contends that this court should, at a minimum, review claims M and N, since the United States Supreme Court decision on
                       which those claims are based -- Melendez Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) -- was not decided until June 25, 2009, and
                       thus, that the legal basis for the claims was not reasonably available until after his state habeas petition was filed. To the extent that
                       Wilbourn maintains that the Supreme Court of Virginia erred in ruling that these claims were procedurally barred, such argument is, as
Wilbourn v. Johnson    previously explained, simply not cognizable on federal habeas review. (Citation.) Moreover, even if claims M and N were not
(2010) 2010 U.S. Dist. procedurally defaulted, Wilbourn would not be entitled to habeas relief, since the rule set forth in Melendez-Diaz 'does not apply
LEXIS 19865            retroactively to cases on collateral review.'" (Citations.) (13.)
                       "in United States v. Griffin, this Court considered a Melendez-Diaz challenge to the admissibility of a certificate of accuracy for a blood
                       alcohol concentration test. See Griffin, 2009 U.S. Dist. LEXIS 86794, 2009 WL 3064757. The challenged certificate of accuracy verified
                       the proper operation of the Intoxilyzer. See 2009 U.S. Dist. LEXIS 86794, [WL] at * 1. The Court determined that the certificate of
                       accuracy constituted 'nontestimonial evidence beyond the scope and reach of the Confrontation Clause' because it 'only convey[ed]
United States v.       information regarding the calibration and proper operation of the Intox EC/IR II.'" (13.) In this case, the portion of the certificate Christie
Christie (2009) 2009   seeks to challenge falls squarely within the category of nontestimonial records carved out by the Supreme Court in Melendez-Diaz and
U.S. Dist. LEXIS       previously recognized by this Court. [Citations.] Moreover, the officer who operated the Intoxilyzer testified live and was subject to cross
113315                 examination. " (14-15.)

                         Re: accuracy certificate: "The Supreme Court's decision earlier this year in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L.
                         Ed. 2d 314 (2009) broadened the spectrum of what can properly be deemed "testimonial" under the Sixth Amendment. Nevertheless,
                         this definitional expansion does not, and cannot, impose an obligation on the government to produce, in person, 'anyone whose
United States v.         testimony may be relevant in establishing the … accuracy of the testing device…'" (1-2.) Re: breath results: "the 'Breath Results Report
Forstell (2009) 2009     falls well short of violative'"testimonial' evidence, even under an expansive reading of Melendez-Diaz. The Intoxilyzer's printout is non-
U.S. Dist. LEXIS         testimonial (citation) and the portions of the Report containing Officer Gillespie's statements are no affront to Forstell's Confrontation
116761                   Clause rights, as Officer Gillespie testified at trial and was available for cross-examination on the subject." (2-3.)



Blackmon v. Johnson "the United States Supreme Court addressed the issue of chain of custody in the recent case of Melendez-Diaz v. Massachusetts, 129
(2009) 2009 U.S. Dist. S. Ct. 2527, 2532 n. 1, 174 L. Ed. 2d 314 (2009), finding: we do not hold, and it is not the case, that anyone whose testimony may be
LEXIS 118059           relevant in establishing the chain of custody. . ., must appear in person as part of the prosecution's case." (8.)
                       Defendant appeals because he was not allowed to confront his accusers (the intended victim of the kidnapping conspiracy) at
Gomez v. United        sentencing. "By pleading guilty, Petitioner waived his right to a jury trial and all the rights that accompany a jury trial. Furthermore,
States (2009) U.S.     Melendez -Diaz v. Mass., 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), cited by Petitioner in support of his claim, has no application to
Dist. LEXIS 109107     Petitioner's specific claim." (5, fn. 4.)
Citation                 Court                Date        Published?   Summary                       Evidence                 Status of Case



                                                                                                                              habeas dismissed because
Watts v. Thomas                                                        Petition for writ of habeas   testimony re: DNA        introduction of testimony not
(2009) 2009 U.S. Dist. 4th Circuit,           Sept. 25,                corpus for defendant          results reached by       an unreasonable application
LEXIS 88258            M.D.N.C.               2009        Y            convicted of statutory rape   colleague                of federal law.




United States v.
Darden (2009) 656 F.                          Sept. 24,                                                                       testimony of the chief
Supp. 2d 560             4th Circuit, D.Md.   2009        Y            Appeal from DUI conviction blood test report           toxicologist is admitted;
                                                                       Motion in limine regarding                             Motion denied by United
United States v. Griffin                                               whether certificate of                                 States v. Griffin, 2009 U.S.
(2009) 2009 U.S. Dist.                        Sept. 22,                instrument accuracy can be Certificate of instrument   Dist. LEXIS 111549 (E.D. Va.,
LEXIS 86794              4th Circuit, E.D. Va 2009        Y            used in DUI trial.         accuracy                    Dec. 1, 2009)




McKesson v. Shearin                                                    Petition for writ of habeas
(2009) 2009 U.S. Dist.                        Sept. 1,                 corpus for defendant          prosecutor's questioning
LEXIS 79504            4th Circuit, D.Md.     2009        Y            convicted of murder           and closing argument     habeas petition dismissed




                                                                                                                             court overrules defendants
                                                                                                   1) certificates of        objections to these exhibits;
United States v.                                                       Defendant objected to       accuracy for breathalyzer Melendez-Diaz not
Forstell (2009) 656 F.                        Aug. 18,                 admissed of exhibits in DUI and radar, 2) breath      applicable/complied with. See
Supp. 2d 578             4th Circuit, E.D. Va 2009        Y            trial.                      alcohol report            row 37, above.
Citation               Discussion
                       "Although the North Carolina Court of Appeals engaged in its analysis of the case under Crawford, the parties have both briefed the
                       possible impact of the recently decided case of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). While they disagree as to how
                       that case is the same as or different from the present case, they do agree that Crawford is the controlling precedent in deciding the
                       matter." (14, fn. 1.) "when Petitioner's arguments against the admission of Freeman's own opinions and analysis of Bissette's findings
Watts v. Thomas        are considered in light of the law governing Confrontation Clause questions, they easily fail. As Respondent points out, following
(2009) 2009 U.S. Dist. Crawford, courts have allowed an expert witness to give an opinion based on the work of another person even if the other person is not
LEXIS 88258            available for cross-examination at trial." (15-16.)

                         Chief toxicologist allowed to testify regarding report and conclusions on whether a sample contains alcohol, even though the actual
                         testing of the alcohol is done by lab technicians. "Defendant reads the holding in Melendez-Diaz too broadly. . . . If the Government was
                         seeking to admit evidence of Defendant's blood alcohol content through Mr. Zarwell's report alone, without the supporting testimony of
                         Mr. Zarwell, then Melendez-Diaz would control and admission of the report would violate Defendant's right of confrontation absent a
                         showing that Mr. Zarwell was unavailable to testify and that Defendant had a prior opportunity to cross-examine him. The Government,
United States v.         however, is not seeking to prove Defendant's blood alcohol concentration through Mr. Zarwell's report, but through the live testimony of
Darden (2009) 656 F. Mr. Zarwell, subject to Defendant's right of cross-examination. The Government may introduce Mr. Zarwell's report to supplement his
Supp. 2d 560             testimony, but the important point is that Mr. Zarwell's report may be admitted to supplement his testimony, but not in lieu of it." (563.)
                         "The Court concludes that the Certificate of Instrument Accuracy is nontestimonial evidence beyond the scope and reach of the
United States v. Griffin Confrontation Clause. Indeed, in Melendez-Diaz the Court explicitly noted that: [W]e do not hold, and it is not the case, that anyone
(2009) 2009 U.S. Dist. whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must
LEXIS 86794              appear in person as part of the prosecution's case. . . ." (5.)
                         "The prosecutor also referenced this testimony in closing when he said, "[y]ou saw him on the stand, ladies and gentlemen, flat-out
                         denying that there was ever a second meeting with myself, Detective Cherry, Detective Sanders and him at his house. It is simply not
                         the truth." Paper No. 1 at Ex. 7 (May 2, 2003), p. 99. Petitioner claims the form of the prosecutor's question violated his Sixth
                         Amendment right to be confronted with the witnesses against him, inasmuch as he could not cross examine the prosecutor regarding
                         the alleged meeting. . . . Petitioner's Sixth Amendment right of confrontation claim was addressed by the Maryland Court of Special
McKesson v. Shearin Appeals. It determined that the prosecutor's statements were not assertions based on his personal knowledge, but instead based on
(2009) 2009 U.S. Dist. Detective Cherry's testimony that he went with the prosecutor and Detective Sanders to Claridy's house where he expressed fear for his
LEXIS 79504              daughter's safety. " (29-31.)

                         "Defendant does not argue that the certificates at issue do anything more than verify the accuracy of the testing devices and equipment
                         used by the United States Park Police. 6 Indeed, the information contained in Government Exhibits 1 through 4 merely confirms that
                         routine accuracy and maintenance tests were performed on the laser device, tuning fork, and Intoxilyzer 5000EN unit. Certificates
                         regarding such routine information fit squarely into the category of nontestimonial records carved out by the Supreme Court. Thus, the
                         government is not required to make available at trial the technicians who performed the tests in order for the certificates to be
United States v.         admissible." (581.) "The admission of Government Exhibit 5 also does not contravene the Confrontation Clause. Government Exhibit 5
Forstell (2009) 656 F.   contains the results from the breath test administered to defendant by Officer Gillespie. In addition to offering the exhibit at trial, the
Supp. 2d 578             prosecution called Officer Gillespie to testify as to the steps he performed in administering the breath test to defendant. " (581-582.)
Citation                 Court         Date        Published?   Summary                       Evidence                Status of Case




United States v.                                                Appeal from conviction for
Breland (2010) 2010                    Feb. 19,                 making a false claim to                               conviction affirmed; Melendez-
U.S. App. LEXIS 3485 5th Circuit       2010        N            FEMA for disaster relief      FEMA file               Diaz not applicable




United States v.                                                                                                      conviction affirmed; Melendez-
Martinez-Rios (2010)                   Jan. 28,                 Appeal of conviction of       Certificate of Non-     Diaz applies, but the error is
U.S. App. LEXIS 2051 5th Circuit       2010        Y            illegal reentry               existance of Record     harmless




United States v.                                                Appeal of conviction for
Santos (2009) 589                                               assault with serious bodily   statement made to nurse conviction affirmed; Melendez-
F.3d 759                 5th Circuit   Dec. 2, 2009 Y           injury.                       regarding level of pain Diaz not applicable


                                                                                                                      Conviction affirmed; Melendez-
                                                                                                                      Diaz may apply but admission
United States v. Dillard                                                                      Audiotapes of           of evidence was harmless.
(2009) 2009 U.S. App.                  Nov. 23,                 Appeal of conviction for      conversations between Petition for certiorari filed
LEXIS 25671              5th Circuit   2009        N            drug crimes                   defendant and informant 02/15/2010
Citation                 Discussion

                     "The Government here argues that presenting the FEMA representative who took Breland's application was unnecessary because the
                     application was a business record. Business records are 'generally admissible absent confrontation . . . because--having been created
                     for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial.'
                     Melendez-Diaz. . . . The FEMA records, although they do contain warnings pertaining to the applicant's duty to tell the truth, were
United States v.     business records created for the purpose of administering federal disaster benefits swiftly and efficiently to those victims of Hurricane
Breland (2010) 2010  Katrina who were eligible to receive assistance. . . . The Government did not offer any hearsay statements from the intake
U.S. App. LEXIS 3485 representative in the instant case, so we find no error in admitting the file without the testimony of the intake representative." (15-18.)
                     "Melendez-Diaz spoke directly to the issue in the instant case. It found particularly analogous 'the cases in which the prosecution sought
                     to admit into evidence a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to
                     find it.' Id. at 2539. Like the testimony of the analysts in this case, the clerk's statement would serve as substantive evidence against the
                     defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk's certificate would
                     qualify as an official record under respondent's definition--it was prepared by a public officer in the regular course of his official duties--
                     and although the clerk was certainly not a 'conventional witness' under the dissent's approach, the clerk was nonetheless subject to
                     confrontation. Id. (Citations). . . . Further, the holding in Melendez-Diaz relies on a key distinction between records that are kept in the
United States v.     ordinary course of business and those that are specifically produced for use at trial: The latter are "testimonial" and are at the heart of
Martinez-Rios (2010) statements triggering the Confrontation Clause. CNR's are not routinely produced in the course of government business but instead are
U.S. App. LEXIS 2051 exclusively generated for use at trial. They are, therefore, testimonial. Also important to the rationale in Melendez-Diaz, 129 S. Ct. at

                         "An out-of-court statement is testimonial if it was 'made under circumstances which would lead an objective witness reasonably to
                         believe that the statement would be available for use at a later trial.' Melendez-Diaz (quoting Crawford, 541 U.S. at 52). We have not
                         previously addressed whether out-of-court statements made during medical treatment are testimonial, but the Supreme Court has noted
                         in dicta that 'medical reports created for treatment purposes . . . would not be testimonial.' Id. at 2533 n.2. . . . Cazeau made his
                         statements during an ongoing emergency, for the purpose of seeking a resolution to that emergency. See Davis, 547 U.S. at 828. . . .
United States v.         We do not doubt that some statements made to a prison nurse would be testimonial due to the nurse's dual role in providing treatment
Santos (2009) 589        and gathering information regarding the incident, but we believe that district courts are equipped to distinguish the point after which
F.3d 759                 'statements in response to questions become testimonial.' Id." (762-763.)
                         "G-4 and G-4a do pose Confrontation Clause issues. In G-4 and G-4a the informant, on more than one occasion, called out Dillard's
                         name, testifying in effect 'This is John Dillard I am speaking with here.' While the admission of G-4 and G-4a may have violated Dillard's
                         Sixth Amendment rights, given the overwhelming nature of the evidence against Dillard any error in admitting G-4 and G-4a was
                         harmless. Dillard was observed conducting the drug transaction, which is the subject of G-4 and G-4a, by a law enforcement officer who
United States v. Dillard was familiar with his voice and able to identify it on the audiotape. Under Melendez-Diaz, G-5 and G-5a may pose a Confrontation
(2009) 2009 U.S. App. Clause issue because they were prepared 'specifically for use at the petitioners trial, but because of the overwhelming evidence against
LEXIS 25671              Dillard, described above, any error in their admission was harmless." (16-17.)
Citation                Court              Date        Published?   Summary                        Evidence                  Status of Case




                                                                                                                             conviction affirmed; Melendez-
United States v. Rose                                               Appeal of convictions for                                Diaz applies, but admission of
(2009) 587 F.3d 695     5th Circuit        Nov. 6, 2009 Y           drug crimes                    drug certificates         evidence is not plain error
United States v.                                                                                   video of doctor
Martinez (2009) 588                                                 Appeal of convictions for      performing medical        conviction affirmed; no
F.3d 301                6th Circuit        Dec. 1, 2009 Y           drug crimes and fraud          procedures                analysis of Melendez-Diaz
United States v.
Cheung (2009) 2009                                                  Appeal of conviction for
U.S. App. LEXIS                            Oct. 22,                 conspiring to harbor illegal                             conviction affirmed; defendant
23454                   6th Circuit        2009        N            aliens                         video deposition          consented to testimony

                                                                                                                             Petition denied; Certificate of
                                                                                                                             appealability denied Wilkens
Wilkens v. Lafler                                                   Habeas petition for                                      v. Lafler, 2009 U.S. Dist.
(2009) 2009 U.S. Dist. 6th Circuit, E.D.   Oct. 28,                 defendant convicted of         victim's testimony (not   LEXIS 114063 ( E.D. Mich.,
LEXIS 100430           Mich                2009        Y            criminal sexual conduct        offered by prosecution)   Dec. 8, 2009)
                                                                                                                             habeas petition denied; court
                                                                                                                             issues certificate of
                                                                                                                             appealability as to its
Wilkey v. Jones (2009)                                              Habeas petition from                                     determination that the
2009 U.S. Dist. LEXIS 6th Circuit, W.D.    Sept. 28,                defendant convicted of         deposition testimony of   Confrontation Clause error
89302                  Mich.               2009        Y            breaking and entering          victim                    was harmless

                                                                    Habeas petition from                                   Certificate of appealability
Storey v. Vasbinder                                                 defendant convicted of                                 granted Storey v. Vasbinder,
(2009) 2009 U.S. Dist. 6th Circuit, E.D.   Sept. 17,                felony murder and              defendant's ability to  2009 U.S. Dist. LEXIS 98150 (
LEXIS 84660            Mich                2009        Y            possession of a firearm        cross-examine witnesses E.D. Mich., Oct. 22, 2009)



                                                                    Motion to Expand Record in                               Motion to expand record to
Hand v. Houk (2009)                                                 Lieu of an Evidentiary                                   include deposition transcripts
2009 U.S. Dist. LEXIS 6th Circuit, S.D.    Sept. 3,                 Hearing Discovery for      deposition transcripts        and affidavits is denied, but
88436                 Ohio                 2009        Y            capital habeas corpus case and affidavits                evdientiary hearing is granted.
Citation                 Discussion

                         "Rose asserts that the SWIFS lab report is testimonial, like the certificates of analysis in Melendez-Diaz, and he therefore was entitled to
                         be confronted with the analyst who actually performed the tests. The government counters that Rose's confrontation rights were not
                         violated because Lopez, who was the supervisor of the laboratory and the reviewer of the analysis at issue and who signed the report as
                         such, testified in court, and was subject to cross-examination by Rose. The government further asserts that the ambiguity in the record
                         regarding Lopez's role in the testing precludes a finding on appeal that any error was plain. We agree that the SWIFS lab report, like the
United States v. Rose    certificates of analysis in Melendez-Diaz, is a testimonial statement for purposes of the Confrontation Clause. However, we conclude
(2009) 587 F.3d 695      that, on this record, any error that may have resulted from admitting the SWIFS lab report was not plain." (700.)
United States v.
Martinez (2009) 588      No analysis of Melendez-Diaz: "because we have already determined that any error in the admission of the video was harmless and we
F.3d 301                 would not exercise our discretion to remedy any error here, Martinez cannot establish plain error. " (314.)
United States v.
Cheung (2009) 2009     Discusses definition of "testimonial" in non-interrogation settings. "whether a reasonable person in the declarant's position would
U.S. App. LEXIS        anticipate his statement being used against the accused in investigating and prosecuting the crime," but states that this "is not the way
23454                  the Court defined "testimonial" hearsay in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)." (8.)
                       "Petitioner argues in this fourth claim that his right to confront and cross-examine the female victim and his right to due process were
                       violated because she was not produced as a witness against him. Petitioner actually argues that the prosecution should have been
                       required to present the female victim as a witness because she would have been helpful to his defense. The Sixth Amendment,
Wilkens v. Lafler      applicable to the States, Melendez-Diaz, 'guarantees to a criminal defendant the right 'to be confronted with the witnesses against him.'"
(2009) 2009 U.S. Dist. (24-25.) Failure of prosecution to bring witness was not harmful because defendant was able to produce videotape of witness that she
LEXIS 100430           consented.


                       "Since Crawford, the Supreme Court has broadly construed which type of statements are considered testimonial and therefore subject
Wilkey v. Jones (2009) to the defendants' constitutional right to confront the speaker or writer. See Melendez-Diaz v. Massachusetts." (10, fn. 2.) Court should
2009 U.S. Dist. LEXIS not have admitted victim's deposition testimony at trial because defendant was not given the opportunity to cross-examine her during
89302                  the deposition.
                       The Sixth Amendment, which is applicable to the States, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531, 174 L. Ed. 2d 314
                       (2009), 'guarantees to a criminal defendant the right "to be confronted with the witnesses against him.'" Danner v. Motley, 448 F.3d 372,
Storey v. Vasbinder    377 (6th Cir. 2006). '[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is
(2009) 2009 U.S. Dist. effective in whatever way, and to whatever extent, the defense might wish.'" (30-31.) Limitations placed on the defendant's ability to
LEXIS 84660            cross-examine certain witnesses were harmless error.
                       "In a capital case, this Court is very reluctant to substitute a paper record, either deposition transcript or affidavits, for live testimony,
                       especially over Respondent's objection. . . . Habeas Rule 7 permits admission of depositions and affidavits despite evidence rules
                       against hearsay. 1 Nevertheless, the Habeas Rules do not create a presumption in favor of "paper" proof and the general preference for
                       live testimony is well established in Anglo-American jurisprudence. 5 J. Wigmore, Evidence § 1364 (Chadbourn Revision 1974); Ohio v.
Hand v. Houk (2009)    Roberts, 448 U.S. 56, 62-64, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed.
2009 U.S. Dist. LEXIS 2d 489 (1970); Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Melendez-Diaz v. Massachusetts, 129
88436                  S. Ct. 2527, 174 L. Ed. 2d 314 (2009)." (4.)
Citation                Court               Date        Published?   Summary                      Evidence                  Status of Case



                                                                     Motion to Expand Record in                             Record expanded only to
Hughbanks v. Hudson                                                  Lieu of an Evidentiary                                 determine whether an
(2009) 2009 U.S. Dist. 6th Circuit, S.D.    Sept. 3,                 Hearing Discovery for       records received from      evidentiary hearing should be
LEXIS 87848            Ohio                 2009        Y            capital habeas corpus case the Police Department       granted.
                                                                                                 testimony from mother
Rice v. Hudson (2009)                                                Habeas petition for         and social worker
2009 U.S. Dist. LEXIS   6th Circuit, N.D.                            defendant convicted of rape regarding child victim's   Habeas petition dismissed;
67592                   Ohio                Aug. 4, 2009 Y           charges                     statements                 Melendez-Diaz not applicable
Boyd v. Toyobo Am.,
Inc. (In re Second                                                                                                        Motion to exclude evidence
Chance Body Armor)      6th Circuit,                                 Breach of warranty/contract Reports regarding safety denied; Melendez Diaz not
(2010) 421 B.R. 823     Bankruptcy Court    Jan. 5, 2010 Y           action                      of material in question  applicable in civil trials




                                                                                                  Testimony from chemist
United States v. Turner                     Jan. 12,                 Appeal from drug             regarding another      conviction affirmed; Melendez-
(2010) 591 F.3d 928     7th Circuit         2010        Y            conviction                   chemist's tests        Diaz not applicable


Newsome v.                                                                                                                  habeas petition dismissed;
Superintendent (2010)                                                                                                       Melendez-Diaz not
2010 U.S. Dist. LEXIS 7th Circuit, N.D.     Feb. 17,                 Appeal from rape and child                             retroactively applicable to
14061                 Ind.                  2010        Y            molesting convictions      DNA report                  cases on collateral review
Citation               Discussion
                       "In a capital case, this Court is very reluctant to substitute a paper record, either deposition transcript or affidavits, for live testimony,
                       especially over Respondent's objection. . . . Habeas Rule 7 permits admission of depositions and affidavits despite evidence rules
                       against hearsay. 1 Nevertheless, the Habeas Rules do not create a presumption in favor of "paper" proof and the general preference for
                       live testimony is well established in Anglo-American jurisprudence. 5 J. Wigmore, Evidence § 1364 (Chadbourn Revision 1974); Ohio v.
Hughbanks v. Hudson Roberts, 448 U.S. 56, 62-64, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed.
(2009) 2009 U.S. Dist. 2d 489 (1970); Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Melendez-Diaz v. Massachusetts, 129
LEXIS 87848            S. Ct. 2527, 174 L. Ed. 2d 314 (2009)." (6-7.)

Rice v. Hudson (2009)    The recent Supreme Court decision of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L. Ed. 2d 314 (2009), regarding hearsay
2009 U.S. Dist. LEXIS    and Sixth Amendment law, is inapplicable to the case at bar. . . . Unlike Melendez-Diaz, the present case does not involve laboratory
67592                    certificates, nor does it involve hearsay admitted through affidavits." (11-12.)
Boyd v. Toyobo Am.,
Inc. (In re Second
Chance Body Armor)       Because Melendez-Diaz is a criminal case, and thus involves a different application of Rule 803(8)(C) and the additional Confrontation
(2010) 421 B.R. 823      Clause issues, this court determines that the holding in Melendez-Diaz does not apply in this civil adversary proceeding.

                        "Turner submitted a supplemental brief, claiming that Melendez-Diaz stands for the proposition that he should have been able to
                        confront Hanson on the witness stand. Turner's argument is faulty. In writing for the Court, Justice Scalia explicitly stated that '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.' Id. at 2532 n.1. Moreover, Melendez-
                        Diaz did not do away with Federal Rule of Evidence 703. And most importantly, unlike in Melendez-Diaz, Hanson's report was not
                        admitted into evidence, let alone presented to the jury in the form of a sworn affidavit, 'functionally identical to live, in-court testimony,
United States v. Turner doing "precisely what a witness does on direct examination,'" id. at 2532. Instead, Block testified as an expert witness presenting his
(2010) 591 F.3d 928     own conclusions about the substances in question to the jury. Accordingly, Melendez-Diaz does not control this case." (934.)
                        "The trial transcripts are not before this court, and so it cannot be determined with certainty whether the DNA evidence in Newsome's
                        case was admitted through a certificate or through live testimony. It appears from Newsome's filings that there was live testimony.
Newsome v.              (Citation.) In such a case, the holding of Melendez-Diaz would be entirely inapplicable. Assuming the case applies, a claim based on
Superintendent (2010) Melendez-Diaz would fail in any event for the reasons explained herein." (7-8, fn. 2.) "Newsome could not prevail on a claim based on
2010 U.S. Dist. LEXIS Melendez-Diaz in a successive state post-conviction petition because Melendez-Diaz does not apply retroactively to cases on collateral
14061                   review." (8-9.)
Citation                Court                 Date          Published?    Summary                      Evidence                    Status of Case




United States v.                                                                                       drug analysis testified to
Alexander (2010) 2010 7th Circuit, N.D.       Jan. 25,                    Appeal from conviction of    by chemist that did not    conviction affirmed; Melendez-
U.S. Dist. LEXIS 6845 Ind.                    2010          Y             drug related offenses        perform analysis           Diaz not applicable




Carillo v. United States                                                  Motion to correct a
(2009) 2009 U.S. Dist.                                                    sentence for conviction of   testimony of cooperating motion denied; Melendez-Diaz
LEXIS 112966             7th Circuit, N.D. Ill. Dec. 3, 2009 Y            drug offenses                witness                  not applicable


                                                                                                       1) telephone toll records
                                                                                                       2) payment records from
                                                                                                       Western Union and
                                                                                                       Walmart (moneygram) 3)      Melendez-Diaz applies to
United States v. Clark                                                    Pretrial determination of    records showing             canine certification, not to
(2009) 2009 U.S. Dist.                        Oct. 27,                    admissibility of certain     certification of a drug     telephone or Western Union
LEXIS 100760           7th Circuit, C.D. Ill. 2009          Y             records                      detection canine            records

Thakore v. Universal
Mach. Co. of Pottstown                                                                                                             Accident reports not included
(2009) 2009 U.S. Dist.                        Sept. 25,                   Civil case regarding a                                   in business records exception
LEXIS 88895            7th Circuit, N.D. Ill. 2009          Y             workplace accident           Accident reports            to hearsay rule.

Thakore v. Universal
Mach. Co. of Pottstown
(2009) 2009 U.S. Dist.                        Sept. 24,     N             Civil case regarding a                                   Opinion withdrawn and
LEXIS 87869            7th Circuit, N.D. Ill. 2009          (withdrawn)   workplace accident           Accident reports            substituted by opinion above.
Citation              Discussion
                      "Contrary to Alexander's argument, Melendez-Diaz is easily distinguishable from this case. Here, rather than simply read a report into
                      evidence, DeFrancesco testified live at trial. Additionally, DeFrancesco independently reviewed Olson's report, analyzed Olson's
                      handwritten notes, independently analyzed the test results, visually inspected the drugs, and reached his own independent opinions
                      regarding the substances of the drug exhibits. This type of testimony does not run afoul of Melendez-Diaz. See, e.g., (Citations.) As the
                      Court in Rector stated, "rather than being a mere conduit for the doctor's findings, the toxicologist reviewed the data and testing
                      procedures to determine the accuracy of the report. An expert may base his opinions on data gathered by others." 681 S.E.2d at 160
                      (citation). Similarly, DeFrancesco was not merely a conduit for Olson's finding. He independently analyzed the procedures and tests
United States v.      conducted, and testified as to his independent opinion about the drugs. Because DeFrancesco was subject to cross-examination at trial,
Alexander (2010) 2010 the Confrontation clause was not violated in this case. Finally, the question remains whether the rule set forth in Melendez-Diaz is even
U.S. Dist. LEXIS 6845 available as an argument in this case because it was decided after Alexander had exhausted his direct appeal. Assuming, without

                         "Petitioner argues that Melendez-Diaz stands for the proposition that the testimonies of cooperating witnesses must be supported by
                         'additional corroborating evidence,' including police records, affidavits, criminal complaints, and 'true forensic evidence.' (Dkt. [1] at 2, 6.)
                         Petitioner maintains that, due to the absence of such corroborating evidence, the testimony of cooperating witness Oscar Diaz was
Carillo v. United States insufficient to hold Petitioner accountable for the bulk of the activity alleged in his indictment. (Dkt. [1] at 6.) . . . . The Supreme Court's
(2009) 2009 U.S. Dist. holdings in Melendez-Diaz thus have little bearing on Petitioner's case. Rather than submitting affidavits, witness Oscar Diaz testified
LEXIS 112966             personally at trial. As such, Petitioner had ample opportunity to exercise his Sixth Amendment rights and cross-examine Diaz." (3-4.)

                       "The Court finds that the telephone toll records and payment records of Western Union and WalMart (money gram) are traditional
                       official or business records and are not subject to the Sixth Amendment confrontation rights of Defendant as required by Crawford v.
                       Washington, 541 U.S. 36 (2004) and its progeny, especially Melendez-Diaz. Records showing the certification and retesting of Kilo, a
                       drug detection canine, which was used to search the pickup truck driven by Defendant is a different kettle of fish, more akin to
                       testimonial records which are covered by the Confrontation Clause. As far as the Court can tell, such certificates are essentially made
United States v. Clark and used in the courts to verify the drug detection capability of so-called drug detection canines. They are used to show (or prove) that
(2009) 2009 U.S. Dist. the dog's actions were consistent with his past and proven ability to detect drugs. Since the dog cannot be cross-examined, the next
LEXIS 100760           best thing is his trainer. These records are subject to the confrontation clause." (1-2.)

Thakore v. Universal     "In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L. Ed. 2d 314 (2009), the Supreme Court reviewed its decision in Palmer v.
Mach. Co. of Pottstown   Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943) and reaffirmed the Court's refusal to include accident reports under the
(2009) 2009 U.S. Dist.   business records exception to the hearsay rule since they lack the regularity that insures reliability that permits the evidence to be
LEXIS 88895              received without cross-examination." (40-41.)

Thakore v. Universal     "In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L. Ed. 2d 314 (2009), the Supreme Court reviewed its decision in Palmer v.
Mach. Co. of Pottstown   Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943) and reaffirmed the Court's refusal to include accident reports under the
(2009) 2009 U.S. Dist.   business records exception to the hearsay rule since they lack the regularity that insures reliability that permits the evidence to be
LEXIS 87869              received without cross-examination." (40-41.)
Citation                Court                Date          Published?   Summary                      Evidence                  Status of Case
                                                                                                                               Grant of habeas affirmed; US
                                                                        Warden appeals district                                Supreme Court certiorari
                                                                        court's order granting writ of                         denied by, Motion granted by
                                                                        habeas corpus for                                      Carlson v. Bobadilla, 2010
Bobadilla v. Carlson                                                    defendant convicted of         statement made by child U.S. LEXIS 120 (U.S., Jan.
(2009) 575 F.3d 785     8th Circuit          Aug. 6, 2009 Y             sexual assault of a child      victim to police        11, 2010)


United States v.
Vargas (2009) 570                                                       Appeal from conviction for   statement made by non- conviction affirmed; Melendez-
F.3d 1003              8th Circuit          Jul. 6, 2009   Y            drug offense                 testifying co-defendant Diaz not applicable
Shannon v. Houston
(2009) 2009 U.S. Dist.                      Oct. 26,                    Motion for release pending                         motion denied; Melendez-Diaz
LEXIS 99259            8th Circuit, D. Neb. 2009           Y            appeal                     amended information (?) not applicable




                                                                                                                              Revocation hearing ordered,
                                                                        Prosecution's motion to                               court states in dicta that
United States v.                                                        revoke Defendant's                                    Melendez-Diaz not applicable
Hibbert (2009) 2009    8th Circuit, E.D.     Sept. 14,                  supervised release for                                in supervised release
U.S. Dist. LEXIS 83499 Mo.                   2009          Y            conviction on drug charges drug certificates          revocation hearings




                                                                                                     1) Sobriety Program      Defendant held to answer;
United States v. Bull                                                                                Report 2) Drug Program   Melendez-Diaz not applicable
(2009) 2009 U.S. Dist.                                                  Petition to revoke           Progress Notes 3) Drug   in supervised release
LEXIS 60203            8th Circuit, D.S.D.   Jul. 10, 2009 Y            supervised release           Test Report              revocation hearings
Citation                 Discussion

                         "The Supreme Court has since issued additional decisions interpreting the scope of the Confrontation Clause. Davis v. Washington, 547
                         U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (holding that statements made during a 911 emergency call were not testimonial,
                         while statements made to a police officer after the danger had passed were testimonial); Melendez-Diaz v. Mass., 129 S. Ct. 2527, 174
Bobadilla v. Carlson     L. Ed. 2d 314 (2009) (holding that lab analyses introduced into trial are testimonial). The Court's decision in Davis strongly supports our
(2009) 575 F.3d 785      conclusion that T.B.'s statements made during the course of the interview with Molden were testimonial." (793, fn. 2.)
                         "Under Crawford v. Washington, the confrontation clause has no application to out-of-court non-testimonial statements. (Citation
                         omitted); see also Melendez-Diaz v. Mass., No. 07-591, 129 S. Ct. 2527 (June 25, 2009) ("Business and public records are generally
United States v.         admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because . . . they are not
Vargas (2009) 570        testimonial."). Garcia's statement identifying Vargas as his source was not testimonial and thus did not implicate Vargas's Sixth
F.3d 1003                Amendment confrontation clause right." (1009.)
Shannon v. Houston
(2009) 2009 U.S. Dist. "In Shannon's case, there was no testimony against him by an unnamed person in the Amended Information. Therefore, Shannon's
LEXIS 99259            reliance on Melendez-Diaz is misplaced." (3-4.)
                       "The Sixth Amendment to the United States Constitution and the Federal Rules of Criminal Procedure guarantee to a defendant cross-
                       examination rights in judicial proceedings, except, in supervised release revocation hearings, the application of those rights is relaxed.
                       The Court must engage in a balancing test to determine the extent of Sixth Amendment rights to be afforded a defendant in such
                       revocation hearings. The Defendant shall have an opportunity to question any adverse witness unless the court determines that the
                       interest of justice does not require the witness to appear. Fed R. Crim. P. 32.1(b)(2)(C). "To determine whether good cause exists for
                       allowing evidence without confrontation, 'the district court must balance the probationer's right to confront a witness against the grounds
                       asserted by the government for not requiring confrontation.'" (citing United States v. Bell, 785 F.2d 640, 642 (8th Cir.1986)). "The
United States v.       government must show that 'the burden of producing live testimony would be inordinate and offer[] in its place hearsay evidence that is
Hibbert (2009) 2009    demonstrably reliable.'" (citing Bell, at 643). Farmer, at 347. Good cause exists in this case for not allowing examination by Defendant of
U.S. Dist. LEXIS 83499 the laboratory technician in this case. In this revocation of supervised release hearing, the burden on the Government to produce the
                       "After re-reading Melendez-Diaz and Crawford, the Court is convinced that they do not apply to, or prohibit the admission of, alcohol and
                       drug test results at a preliminary hearing in a supervised release revocation matter. . . . The Court, however, has previously observed
                       that a revocation proceeding is not the same as a criminal trial. (Citations.) The Sixth Amendment only applies to 'criminal prosecutions'
                       and a revocation of supervised release is not a part of such a prosecution. Id. "Revocation deprives an individual, not of the absolute
                       liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [ ] restrictions,"
United States v. Bull  and thus the full protection provided to a criminal defendant under the Confrontation Clause does not apply to revocation cases.
(2009) 2009 U.S. Dist. (Citations.) For this reason, Crawford, and by extension, Melendez-Diaz, are not implicated in a supervised release revocation
LEXIS 60203            proceeding." (2-3.)
Citation                Court              Date         Published?   Summary                      Evidence                  Status of Case



                                                                     Remand from US Supreme
                                                                     Court case (see row 6,       affidavit stating that
United States v.                                                     above). Defendant            defendant had no          Conviction affirmed; Melendez-
Norwood (2010) 2010                        Feb. 17,                  convicted of drug and        legitimate source of      Diaz applicable, but error was
U.S. App. LEXIS 3042 9th Circuit           2010         Y            weapons charges.             income                    harmless

                                                                                                testimony of cooperating    Denial of habeas affirmed. US
                                                                                                witness who is deaf and     Supreme Court certiorari
                                                                     Appeal of denial of habeas communicates through        denied by Vasquez v.
Vasquez v. Kirkland                                                  petition for defendant     facial expressions and      Kirkland, 2010 U.S. LEXIS
(2009) 572 F. 3d 1029 9th Circuit          Jul. 20, 2009 Y           convicted of murder        gestures                    460 (U.S., Jan. 11, 2010)




Razo v. Thomas                                                       habeas petiton by                                      conviction affirmed; any
(2010) 2010 U.S. Dist.                      Feb. 10,                 defendant convicted of drug                            Melendez-Diaz error is
LEXIS 23149            9th Circuit, D. Haw. 2010        Y            charges                     drug certificate           harmless

                                                                                                  exclusion of evidence of
Quilopras v. Yates                                                   Habeas petition for          witness's prior acquittal
(2009) 2009 U.S. Dist. 9th Circuit, N.D.   Dec. 18,                  defendant convicted of       in a separate trial on
LEXIS 117931           Cal.                2009         Y            murder                       cross-examination         Petition denied.




Wesson v. Clark                                                      Habeas petition for
(2009) 2009 U.S. Dist. 9th Circuit, N.D.   Nov. 23,                  defendant convicted of sex documentation of prior      petition denied; Melendez-
LEXIS 115743           Cal.                2009         Y            crimes                     conviction                  Diaz not applicable
Citation                 Discussion

                         "In this case, the government concedes that under Melendez-Diaz, [the affidavit], prepared for use at Norwood's trial to prove the
                         absence of any record of Norwood having legitimate employment, should not have been admitted without Arndt presenting herself at
                         trial for examination. In light of the government's concession that admission of Arndt's affidavit violated Norwood's Sixth Amendment
                         rights, we must remand for a new trial unless the government demonstrates beyond a reasonable doubt that admission of the evidence
United States v.         was harmless. . . . Under the circumstances of this case, the government has met its burden. Unlike the affidavit in Melendez-Diaz, the
Norwood (2010) 2010      affidavit in this case was not offered to prove an element of the offense, nor was it the sole evidence of any relevant fact. Rather, the
U.S. App. LEXIS 3042     testimony provided by the disputed affidavit was not particularly important to the case, and was cumulative." (7-9.)
                         "The Supreme Court has explained that the right of confrontation 'means more than being allowed to confront the witness physically.'
                         (Citations.) Rather, '[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-
                         examination.' Id. at 315-16 (internal quotation marks and citation omitted); accord Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527. . .
                         . Vasquez is, however, unable to point us to any case in which the Supreme Court found a violation of a defendant's Confrontation
Vasquez v. Kirkland      Clause rights where the limitations on the effectiveness of cross-examination resulted from the witness's own physical impairments."
(2009) 572 F. 3d 1029    (1035-1036.)
                         "Razo also argues that criminologist Julie Wood's testimony as to the weight and composition of the drug evidence was improperly
                         admitted, based on (citation), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (holding that the admission of laboratory
                         analysts' certificates and affidavits, without the testimony of the analysts themselves, violated petitioner's right to confront the witnesses
                         against him). As noted, Razo admitted that he possessed more than 1/8 ounce of methamphetamine. Thus the admission of Wood's
                         testimony on the weight and chemical composition of the drug evidence had no substantial or injurious effect on the jury's verdict
                         beyond a reasonable doubt. See Brecht, 507 U.S. at 623." (22-23.) "Second, insofar as Razo contests an alleged lack of foundation for
                         the accuracy of the testing equipment underpinning Wood's testimony, (citations), this argument is misplaced. . . . To the extent that
Razo v. Thomas           Razo believes that Melendez-Diaz bolsters his argument and transforms it into a federal claim, he is mistaken. The majority in Melendez-
(2010) 2010 U.S. Dist.   Diaz explicitly rejected the suggestion that the Confrontation Clause requires that every person whose testimony might be relevant to the
LEXIS 23149              authenticity of a sample or accuracy of a testing device must appear in person as part of the prosecution's case. (citation.)" (23-24.)
                         The Confrontation Clause applies to all "testimonial" statements. See Crawford, 541 U.S. at 50-51. . . . This includes the admission of
                         affidavits reporting the results of forensic analysis which fall into the "'core class of testimonial statements'" described in Crawford.
Quilopras v. Yates       Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2544-45 (quoting Crawford, 541 U.S. at 54). . . . To determine whether a criminal
(2009) 2009 U.S. Dist.   defendant's Sixth Amendment right of confrontation has been violated by the exclusion of evidence on cross-examination, a court
LEXIS 117931             must inquire whether: . . ." (21-22.)
                         some government documents may be testimonial. For example, affidavits reporting the results of forensic analysis fall into the "'core
                         class of testimonial statements'" described in Crawford. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2544-45 (quoting Crawford,
                         541 U.S. at 54). A government document is nontestimonial when it is not made in anticipation of litigation and is simply a routine,
                         objective cataloging of an unambiguous factual matter. (Citation.) The documents to which Wesson objects are an excerpt from the
                         information for the 1990 offenses, a notice of order to the sheriff that Wesson had changed his plea, and an abstract of judgment. At
                         least the last two are nontestimonial. The abstract of judgment was prepared on a form that objectively memorialized the unambiguous
Wesson v. Clark          fact of conviction. CT 177. Similarly, the letter to the sheriff is a notice that merely informed the sheriff that Wesson had pled guilty to
(2009) 2009 U.S. Dist.   charged crimes. CT 176. In light of the fact that neither of these documents were prepared for the purpose of aiding in a later
LEXIS 115743             prosecution, they are nontestimonial." (16-17.)
Citation                Court               Date         Published?   Summary                    Evidence                 Status of Case



United States v.
Corona-Rivera (2009)                                                  Motion for new trial for
U.S. Dist. LEXIS        9th Circuit, S.D.   Oct. 26,                  defendant convicted illegal Certificate of Non-     motion denied; any Melendez-
100146                  Cal.                2009         Y            presence in US              existance of Record     Diaz error is harmless

                                                                      Habeas petition for
Tackett v. Barnes                                                     defendant convicted of
(2009) 2009 U.S. Dist. 9th Circuit, E.D.    Oct. 23,                  vehicular manslaughter     statement identifying    petition denied; any Melendez-
LEXIS 104582           Cal.                 2009         Y            while intoxicated          defendant as driver      Diaz error was harmless.




                                                                      Motion for new trial by
United States v. Diaz-                                                defendant convicted of
Delgado (2009) 2009 9th Circuit, S.D.       Oct. 16,                  being in US without        Certificate of Non-      motion denied; any Melendez-
U.S. Dist. LEXIS 96843 Cal.                 2009         Y            permission                 existance of Record      Diaz error is harmless



                                                                                                                          Habeas petition dismissed by
Casillas v. Woodford                                                  Habeas petition from                                Casillas v. Woodford, 2009
(2009) 2009 U.S. Dist. 9th Circuit, C.D.                              defendant convicted of     statements made to       U.S. Dist. LEXIS 80732 (C.D.
LEXIS 80876            Cal.                 Jul. 29, 2009 Y           residential burglary       detective by witness     Cal., Sept. 3, 2009)

                                                                                                                         motion granted in part to admit
                                                                                                                         recorded phone calls without
                                                                                                                         informant at trial, but denies
                                                                                                                         those statements that would
                                                                      Motion to suppress co-                             be too prejudicial. Melendez-
                                                                      conspirator statements and                         Diaz used to explain why
United States v. Lane                                                 other motions for defendant recorded phone calls   prejudice could not be cured
(2009) 2009 U.S. Dist. 9th Circuit, S.D.                              charged with conspiracy to between co-conspirators by testing reliability through
LEXIS 65828            Cal.                 Jul. 27, 2009 Y           commit kidnapping           and informant          confrontation
Citation                Discussion

                       Court assumes that it was error to admit certificate of non-existence of record. "The certificate of non-existence confirmed the results of
                       same search Agent Sanchez had conducted. In addition, the Defendant admitted at the time of his arrest that he had no immigration
United States v.       documents for lawful admission into the United States. The evidence presented at trial showed that the Defendant was apprehended by
Corona-Rivera (2009) border patrol agents and admitted that he was illegally in the United States. The evidence in the certificate of non-existence was
U.S. Dist. LEXIS       cumulative of the testimony of Agent Sanchez and Defendant's admissions. The Court confidently concludes, on the whole record, that
100146                 any constitutional error from the admission of the certificate of non-existence was harmless beyond a reasonable doubt." (4-5.)
                       "the real federal issue is one of cross-examination/confrontation, i.e., the paramedic, or other emergency response person, was not
                       subject to being examined or confronted by the defendant in court. And, the Supreme Court has become much more strict in the last
Tackett v. Barnes      several years about not admitting 'reliable' testimonial statements which are not subject to cross-examination in court at some
(2009) 2009 U.S. Dist. proceeding. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009); (Citations.) However, even if these cases could apply retroactively
LEXIS 104582           to petitioner's situation (and they cannot), the error was indisputably immaterial." (45-46.)

                       "Assuming that it was error to admit the certificate of non-existence to prove that the Defendant had not applied for admission into the
                       United States, this Court must determine whether this court "may confidently say, on the whole record, that the constitutional error was
                       harmless beyond a reasonable doubt." Id. At trial, Agent Robles testified that he personally reviewed the Defendant's A-file and
                       searched data dases which would show whether the Defendant had applied for permission to re-enter after this prior deportation. Agent
                       Robles testified that the Defendant's A-file and relevant databases did not contain any document indicating that the Defendant had
                       reapplied for permission to reenter. In addition, the Defendant in his post-Miranda statement admitted that he had not applied for reentry
United States v. Diaz- into the United States. . . . The evidence in the certificate of non-existence was cumulative of the testimony of Agent Robles and
Delgado (2009) 2009 Defendant's admissions. The Court confidently concludes, on the whole record, that any constitutional error from the admission of the
U.S. Dist. LEXIS 96843 certificate of non-existence was harmless beyond a reasonable doubt." (4-5.)
                       "in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Supreme Court opined that for a statement to be 'testimonial' within
                       the meaning of Crawford, whether or not police questioning is involved, it must have been made "'under circumstances which would
                       lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Id. at 2532 (citation
                       omitted). . . . Under these standards, it is unclear that Detective Wood's testimony about Eagan's reluctance to testify involved
Casillas v. Woodford   "testimonial" statements by Eagan. Detective Wood simply recounted the substance of a conversation he had with Eagan shortly before
(2009) 2009 U.S. Dist. Eagan testified regarding Eagan's reluctance to appear as a trial witness. . . . For these reasons, it does not appear that Eagan's
LEXIS 80876            statements in issue were 'testimonial' within the meaning of Crawford's proscription." (88-90.)


                       "Fernandez's statements are clearly testimonial, as they were 'made under circumstances which would lead an objective witness
                       reasonably to believe that the statement[s] would be available for use at a later trial.' Melendez-Diaz v. Massachusetts,129 S.Ct. 2527,
                       2532 (2009) (citing Crawford, 541 U.S. at 52). . . . Fernandez's statements thus may be admitted not to prove the truth of the matter
                       asserted, but to provide context to the admissible co-conspirator statements of Carman, subject to a limiting instruction. However, the
                       Court concludes that under the circumstances of this case, some of Fernandez's statements should be excluded under Rule 403. . . . A
United States v. Lane limiting instruction may not go far enough to cure this unfair prejudice, as Lane would not have an opportunity exercise his Sixth
(2009) 2009 U.S. Dist. Amendment right to cross-examine the witness against him about these testimonial, hearsay statements. See Melendez-Diaz, 129 S.Ct.
LEXIS 65828            at 2531." (16-17.)
Citation                Court              Date           Published?   Summary                      Evidence                   Status of Case



                                                                                                                               recommendation that habeas
Sanders v. Dir. Of CDC                                                 Habeas petition for                                     petition be denied; assumes
(2009) 2009 U.S. Dist. 9th Circuit, E.D.                               defendant convicted of drug                             arguendo that Melendez-Diaz
LEXIS 63049            Cal.                Jul. 14, 2009 Y             charges                     field identification card   applies; error is harmless




Larkin v. Yates (2009)
2009 U.S. Dist. LEXIS 9th Circuit, C.D.                                                                                        habeas petition denied;
60106                  Cal.                Jul. 9, 2009   Y            Habeas petition              DNA report                 Melendez-Diaz not applicable




                                                                                                    confidential informant's
                                                                                                    statements to law
United States v. Lopez-                                                                             enforcement official, co- conviction affirmed; Melendez-
Medina (2010) 2010                         Feb. 19,                    Appeal from conviction of    defendant's factual       Diaz applicable, but evidence
U.S. App. LEXIS 3349 10th Circuit          2010           Y            drug related offenses        allocution                let in for other reasons



                                                                                                                               Judgment affirmed; Melendez-
                                                                                                                               Diaz applies but defendant
                                                                                                                               had opportunity for cross-
                                                                                                                               examination; US Supreme
                                                                                                                               Court certiorari denied by
United States v.                                                                                     out-of-court              Pursley v. United States, 2010
Pursley (2009) 577                         Aug. 21,                    Appeal for convictions for    statements/excited        U.S. LEXIS 369 (U.S., Jan.
F.3d 1204               10th Circuit       2009           Y            retaliation against a witness utterances                11, 2010)
Citation               Discussion
                       "Assuming arguendo that petitioner did not waive his Confrontation Clause claim by failing to object to the testimony of Officer Nipper
                       regarding the identification card filled out by Officer Gagliardi, it appears that petitioner's inability to cross-examine Officer Gagliardi
                       about the making of the field identification report violated petitioner's right to confront the witnesses against him. See Melendez-Diaz v.
                       Massachusetts, 129 S. Ct. 2527 (2009) (admission of certificates of laboratory analysts without the testimony of the analysts themselves
Sanders v. Dir. Of CDC violated petitioner's right to confront the witnesses against him). However, any such error was harmless under the circumstances of this
(2009) 2009 U.S. Dist. case. Here, the trial testimony given by Officer Nipper regarding the identification card filled out by Officer Gagliardi was actually helpful
LEXIS 63049            to petitioner's defense." (35-26.)
                         "Dr. Word's testimony about the test results performed by someone else is not akin to the affidavit-like certificates
                         of analysis in Melendez-Diaz. Whereas the certificates of analysis in Melendez-Diaz were 'functionally identical to
                         live, in court testimony,' the test results here, at best, served as a partial basis for the opinion of a testifying expert.
                         . . . Moreover, the distinction between this case and Melendez-Diaz is too great to support the contention that the
                         state courts unreasonably applied clearly established Federal law. . . . although Melendez-Diaz's holding as to the
                         admission of sworn affidavits regarding scientific evidence may be clear and was well established by Crawford, the
                         same cannot be said regarding a supervising expert's testimony about test results prepared by someone other than
                         the testifying expert. On the contrary, the fact that Justice Thomas in his concurrence limited Confrontation Clause
Larkin v. Yates (2009)   protections to only extrajudicial statements contained in formalized testimonial material highlights the lack of clarity
2009 U.S. Dist. LEXIS    on this issue. Importantly, Justice Thomas was the fifth vote in the five-to-four decision, meaning that there would
60106                    be no clear majority if, as in petitioner's case, the offending testimony did not consist of formalized testimonial

                        "A confidential informant's statements to a law enforcement officer are clearly testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct.
                        2527, 2532 (2009); (Citation.)" (25-26.) Here, however, the defendant opened up the door for those statements. Additioanlly, "Lopez-
                        Ahumado's statements at his change of plea hearing fall within the 'core class of testimonial statements.' See Melendez-Diaz v.
                        Massachusetts, 129 S. Ct. 2527, 2531 (2009) (quotations omitted); see also United States v. Bruno, 383 F.3d 65, 78 (2d Cir. 2004)
                        (holding "there is no question" that a plea allocution is testimonial under Crawford). Because Lopez-Ahumado's statements at his
United States v. Lopez- change of plea hearing were testimonial, they could not be admitted in Lopez-Medina's trial for the truth of the matter asserted unless
Medina (2010) 2010      Lopez-Ahumado was unavailable and Lopez-Medina had a prior opportunity for cross-examination." (36.)
U.S. App. LEXIS 3349
                        "we believe that an excited utterance is not per se excluded from the scope of the Confrontation Clause. See Davis, 547 U.S. at 822
                        (noting that there is no per se exclusion for 911 calls; finding statement to police deemed "excited utterance" by state court to be
                        testimonial). One of the lessons of Crawford and Davis, and their partial overruling of Ohio v. Roberts, 448 U.S. 56 (1980), is that even if
                        a statement qualifies for an exception to the hearsay doctrine--based upon judicially fashioned reliability principles--the statement's
                        admission may violate the Sixth Amendment's mandate for 'confrontation' if it constitutes 'testimonial' hearsay. See Crawford, 541 U.S.
                        at 61-62 ("[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in . . . the crucible of
                        cross-examination."); Melendez-Diaz, 129 S. Ct. at 2533 (discussing Ohio v. Roberts's "since-rejected theory that unconfronted
                        testimony was admissible as long as it bore indicia of reliability"). Therefore, although they qualify as excited utterances, the admission
United States v.        of Mr. Cluff's statements could be found under certain circumstances to violate the Confrontation Clause, if they are testimonial. For our
Pursley (2009) 577      decisional purposes here, we assume arguendo that Mr. Cluff's statements are testimonial." (1223-1224.) "The sine qua non of a
F.3d 1204               Confrontation Clause violation is the absence of an opportunity to confront the witness. See, e.g., Melendez-Diaz, 129 S. Ct. at 2531.
Citation                Court                Date        Published?     Summary                      Evidence                  Status of Case



United States v.
Caraballo (2010) 2010                        Jan. 27,                   Appeal of convictions for                              conviction affirmed; Melendez-
U.S. App. LEXIS 1873 11th Circuit            2010        Y              alien smuggling              immigration form          Diaz not applicable



                                                                                                                               Restitution denied; Melendez-
                                                                                                                               Diaz not applicable. Accepted
                                                                                                                               by, in part, United States v.
                                                                        Request for restitution by                             Faxon, 2010 U.S. Dist. LEXIS
United States v. Faxon                                                  government to defendant                                10264 (S.D. Fla., Feb. 4,
(2010) 2010 U.S. Dist. 11th Circuit, S.D.   Jan. 27,                    convicted of child sex       victims' statements and   2010) (rejected, in part, on
LEXIS 10268            Fla.                 2010          Y             related crimes               doctors' reports          other grounds)
McGrady v. Mabus
(2009) 635 F. Supp. 2d                                                  Action filed pursuant to the
6                      D.C. Circuit, D.D.C. Jul. 22, 2009 Y             Freedom of Information Act n/a                         n/a



                                                                                                                               judgment affirmed; Melendez-
                                                                                                                               Diaz is analogous, but no due
                                                                                                                               process violation by not letting
Gambill v. Shinseki                          Aug. 13,                   Action based on Veteran's                              plaintiff submit interrogatories
(2009) 576 F.3d 1307    Fed. Circuit         2009        Y              Claims decision              medical report            to medical experts
                                                         Subject to
                                                         editorial
United States v.                                         correction     Interlocutory governmental                             appeal not allowed; no
Bradford (2010) 2010    Court of Appeals for Feb. 26,    before final   appeal in a pending court                              discussion of Melendez-Diaz
CAAF LEXIS 189          the Armed Forces 2010            publication    martial for drug charges   drug certificate            by this court

United States v. Garcia-                                                                                                       review granted on Melendez-
Varela (2009) 2009       Court of Appeals for Oct. 29,                  Appeal from conviction of                              Diaz issue, final opinion not
CAAF LEXIS 1257          the Armed Forces 2009           N              wrongful use of cocaine.     urinalysis report         yet published
                                                                                                                               review granted on Melendez-
United States v. Blazier Court of Appeals for Oct. 29,                  Appeal from conviction of                              Diaz issue, final opinion not
(2009) 68 M.J. 240       the Armed Forces 2009           N              wrongful use of drugs        urinalysis report         yet published
Citation                 Discussion
                         "Like a Warrant of Deportation and a Certificate of Nonexistance of Record (and unlike the certificates of analysis in Melendez-Diaz),
                         the basic biographical information recorded on the I-213 form is routinely requested from every alien entering the United States, and the
                         form itself is filled out for anyone entering the United States without proper immigration papers." (33.) "The district court properly ruled
United States v.         that the primary purpose of Rose's questioning of the aliens was to elicit routine biographical information that is required of every foreign
Caraballo (2010) 2010    entrant for the proper administration of our immigration laws and policies. The district court did not violate Caraballo's constitutional
U.S. App. LEXIS 1873     rights in admitting the smuggled aliens's redacted I-213 forms." (35.)
                         "the Eleventh Circuit has distinguished hearsay admissible at sentencing proceedings as opposed to hearsay objections made at the
                         trial phase of a criminal case. In United States v. Mandhai, 140 Fed. Appx. 54 (11th Cir. 2005), the Eleventh Circuit stated that its clear
                         precedent that reliable hearsay can be considered during sentencing is distinguishable from the Crawford v. Washington, 541 U.S. 36
                         (2004) decision of the United States Supreme Court. . . . Further, the Eleventh Circuit in Mandhai said that without any directive from the
                         Supreme Court prohibiting consideration of hearsay at sentencing, its precedent in this area will continue to allow such evidence to be
                         considered. This Court points this out since there is a recent decision by the United States Supreme Court in Melendez-Diaz v.
                         Massachusetts, 129 S.Ct. 2527 (2009) which held that affidavits submitted at the trial phase of a criminal case were not removed from
United States v. Faxon   the coverage of the Confrontation Clause. This Court has reviewed Melendez-Diaz in conjunction with the Eleventh Circuit's precedent
(2010) 2010 U.S. Dist.   concerning hearsay admissible at sentencings and finds no conflict. In this Court's view, Melendez-Diaz continues to deal with hearsay
LEXIS 10268              at the trial level and does not act as a prohibition to the hearsay being offered at the sentencing restitution hearing in this case.
McGrady v. Mabus         "Black's Law Dictionary is a well known legal reference dictionary which is widely relied upon by attorneys and courts. See, e.g.,
(2009) 635 F. Supp. 2d   Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532, 174 L. Ed. 2d 314 (2009) (using Black's Law Dictionary to define the term
6                        "affidavit")." (14.)

                         "The right to confront adverse witnesses is fundamental to American legal process. . . . The Supreme Court recently reaffirmed the
                         vitality of this principle with regard to affidavits reporting the results of forensic analysis. Melendez-Diaz v. Mass., 129 S. Ct. 2527
                         (2009). Although the result in that case was commanded by the Sixth Amendment, id. at 2536, the Court also observed that 'neutral
                         scientific testing' is not immune to fraud and incompetence, and that confrontation serves to test experts 'honesty, proficiency, and
                         methodology--the features that are commonly the focus in the cross-examination of experts,' id. at 2538. Melendez-Diaz is a poignant
Gambill v. Shinseki      and timely reminder of the central importance of confrontation no matter what form evidence may take. There is nothing special about
(2009) 576 F.3d 1307     the medical opinions relied upon by DVA that exempts them from this general rule." (1325-1326.)


United States v.         Lower court judge did not pre-admit the government's drug report because of Melendez-Diaz concerns. Government filed interlocutory
Bradford (2010) 2010     appeal. Court of Appeals for the Armed Forces declined to hear the appeal on the merits because there had been no ruling excluding
CAAF LEXIS 189           evidence. No substantive discussion of Melendez-Diaz by this court.

United States v. Garcia-
Varela (2009) 2009       Review granted on the issue of whether appellant was denied his 6th Amendment right where the government's case consisted of the
CAAF LEXIS 1257          appellants positive urinalysis and whether trial counsel's failure to object waived the confrontation clause issue.
                         Review granted on the issue of whether appellant was denied his 6th Amendment right where the military judge did not compel the
United States v. Blazier government to produce essential lab officials who handled the appellant's urine samples and instead allowed the expert toxicologist to
(2009) 68 M.J. 240       testify to non-admissible hearsay.
Citation               Court               Date        Published?     Summary                      Evidence             Status of Case




                       Court of Appeals for                                                                             conviction affirmed; any error
United States v.       the Armed                                                                                        is harmless; Melendez-Diaz
Robinson (2010) CCA    Forces/Court of      Jan. 28,                  Appeal from conviction of                         likely not applicable to urine
LEXIS 8                Military Appeals     2010       N              wrongful use of drugs        urinalysis report    screening




                       Court of Appeals for                           Appeal from exclusion of
United States v.       the Armed                                      evidence in court-martial
Borgman (2009) 2009    Forces/Court of      Dec. 14,                  proceeding for wrongful use                       Appeal granted; Melendez-
CCA LEXIS 488          Military Appeals     2009       Y              of drugs                    urinalysis report     Diaz not applicable

                                                                                                                        Motion granted by United
                       Court of Appeals for                           Appeal from exclusion of                          States v. Skrede, 2009 CAAF
United States v.       the Armed                                      evidence in court-martial                         LEXIS 1304 (C.A.A.F., Nov.
Skrede (2009) 2009     Forces/Court of      Nov. 23,                  proceeding for wrongful use                       25, 2009); Melendez-Diaz not
CCA LEXIS 443          Military Appeals     2009       Y              of drugs                    urinalysis report     applicable


                     Court of Appeals for                             Appeal from exclusion of
United States v.     the Armed                                        evidence in court-martial
Anderson (2009) 2009 Forces/Court of      Nov. 23,                    proceeding for wrongful use                       Appeal granted; Melendez-
CCA LEXIS 438        Military Appeals     2009         Y              of drugs                    drug testing report   Diaz not applicable
                                                                                                                        Appeal granted; Melendez-
                                                                                                                        Diaz not applicable. Reversed
                       Court of Appeals for                                                                             by, Remanded by United
United States v.       the Armed                                      Interlocutory governmental                        States v. Bradford, 2010
Bradford (2010) 2009   Forces/Court of      Nov. 23,   Y              appeal in a pending court                         CAAF LEXIS 189 (see row 89,
CCA LEXIS 437          Military Appeals     2009       (overturned)   martial for drug charges   drug certificate       above)
Citation               Discussion
                       "While the holding in Melendez-Diaz is substantively distinguishable from CAAF's determination in Magyari in that the military's
                       urinalysis program does not send "suspected" samples to drug screening laboratories for evaluation but rather sends all samples for
                       testing, we are mindful of dicta within Melendez-Diaz which would suggest that the Court is concerned with both biased and
                       incompetently tested evidence. . . . However, in sharp contrast with the facts of Melendez-Diaz, the appellant did not question the
                       competence of those testing his sample at the Navy Drug Screening Laboratory. . . . Based on the facts of this case, and the forfeiture
                       by the defense of the issue at this trial, we need not visit this concern addressed by way of dicta in Melendez-Diaz. . . . The question
                       before this court, therefore, is whether the decision in Melendez-Diaz effectively overrules the CAAF decision in Magyari or otherwise
United States v.       expands the landscape of Crawford. We find that it does not and we distinguish the Melendez-Diaz case from Magyari and the case at
Robinson (2010) CCA    bar. [factual discussion of Melendez-Diaz.] By contrast, in Magyari, the laboratory reports at issue concerned a specimen submitted
LEXIS 8                pursuant to random selection. The laboratory technicians worked with batches of urine samples that each contained multiple individual
                       "The military judge's conclusion that the drug testing reports offered at trial are somehow testimonial under the rationale of Melendez-
                       Diaz because 'personnel in the chain would have reason to believe that statements that they made' would be used at trial is
                       unsupported by the evidence. First, the evidence clearly shows that the technicians running the machines had no idea who the sample
                       belonged to or why they were testing it. Second, the evidence clearly shows that the technicians simply operate machines that do the
                       actual testing. Third, the reports consist of raw data from the machines themselves which requires expert interpretation. Fourth, only a
                       small fraction (less than one-half of one percent) of the roughly 800,000 specimens processed each year report positive for any drug.
                       Melendez-Diaz does not expand Crawford to now require rejection of such laboratory reports which under Crawford have been found
                       nontestimonial in the prior cases of this Court and others -- both military and civilian. The Melendez-Diaz opinion itself cautions against
United States v.       such expansive interpretation, stating: "This case involves little more than the application of our holding in Crawford v. Washington. . . .
Borgman (2009) 2009    The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such
CCA LEXIS 488          evidence against Melendez-Diaz was error." Melendez-Diaz, 129 S. Ct. at 2542.Consistent with this admonition, the totality of the



United States v.
Skrede (2009) 2009
CCA LEXIS 443        Discussion consistent with United States v. Borgman and United States v. Robinson, above.
                     "Considering our opinion in Blazier, our superior court's decision in Magyari, and the Fourth Circuit's decision in Washington, we find
                     that the military judge abused his discretion by denying the government's motion to preadmit the appellee's second DTR. The testing
                     conducted at AFDTL was essentially the same for both the random and the consensual tests. We do not find that Melendez-Diaz
United States v.     applies in this situation because the raw data contained in the DTR are not statements made by the lab technicians and the government
Anderson (2009) 2009 intended to call an expert, who is also an employee of AFDTL and would be subject to cross-examination by the appellee. Accordingly,
CCA LEXIS 438        under these circumstances, the DTR is non-testimonial." (13-14.)



United States v.
Bradford (2010) 2009   Discussion consistent with United States v. Borgman, United States v. Robinson, and United States v. Bradford above. Reversed by
CCA LEXIS 437          United States v. Bradford, 2010 CAAF LEXIS 189 (see row 89, above) on procedural grounds
Citation                Court              Date           Published?   Summary                       Evidence                   Status of Case


Vanpelt v. State (2009)
Ala. Crim App. LEXIS Alabama Court of      Dec. 18,                    Appeal from capital murder                               conviction affirmed; any error
166                     Criminal Appeals   2009           Y            conviction                 toxicology report             is harmless

Douglas v. State                                                       Appeal from conviction of
(2009) 214 P.3d 312     Alaska Supreme     Aug. 14,                    jury tampering and unlawful                              conviction affirmed; Melendez-
(Fabe, C.J, dissenting) Court              2009           Y            contact                     n/a                          Diaz not discussed by majority

People v. Lopez
(Virginia Hernandez)                                                   Appeal from conviction of
(2009) 102 Cal. Rptr.   California Supreme                             vehicular manslaughter                                   Petition for review granted,
3d 283                  Court              Dec. 2, 2009 Y              while intoxicated             blood alcohol report       final opinion not yet published
People v. Dungo
(Reynaldo Santos)
(2009) 102 Cal. Rptr.   California Supreme                             Appeal from murder                                       Petition for review granted,
3d 282                  Court              Dec. 2, 2009 Y              conviction                    autopsy report             final opinion not yet published

People v.
Rutterschmidt (Olga)
(2009) 102 Cal. Rptr.   California Supreme                             Appeal from murder                                       Petition for review granted,
3d 281                  Court              Dec. 2, 2009 Y              conviction                    toxicology report          final opinion not yet published


People v. Gutierrez
(Hugo) (2009) 102 Cal. California Supreme                              Appeal from conviction for    1) sexual assault report   Petition for review granted,
Rptr. 3d 281           Court              Dec. 2, 2009 Y               sex crimes                    2) DNA report              final opinion not yet published
                                                                                                                                Petition for review granted,
People v. Bradley                                                                                                               transferred to Court of Appeal,
(Allen James) (2009) California Supreme Sept. 17,                                                                               opinion of court of appeal not
2009 Cal. LEXIS 9889 Court              2009              Y            Not available on Lexis        Not available on Lexis     yet published

                                                                                                                                Petition for review granted,
                                                                                                                                transferred to Court of Appeal,
People v. Benitez                                                      Appeal from conviction for                               see People v. Benitez (2010)
(Samuel) (2009) 2009    California Supreme                             resisting an officer and drug                            2010 Cal. App. LEXIS 222
Cal. LEXIS 7196         Court              Jul. 8, 2009   Y            charges                       drug certificate           (row 107, below)
Citation                 Discussion

                        "Assuming, without deciding, that the toxicology results were hearsay and their admission violated Vanpelt's right to confront, (footnote
Vanpelt v. State (2009) citing Melendez-Diaz) any error that might have occurred did not rise to the level of plain error. Here, defense counsel made the first
Ala. Crim App. LEXIS reference to the victim's blood-alcohol level, and counsel did not object when Dr. Ward testified to the toxicology results. Clearly,
166                     defense counsel viewed the results of the toxicology report as favorable and relevant to Vanpelt's defense." (75.)
                        Dissent:"a defendant's right to attend his trial 'is rooted in the right to confront adverse witnesses and the right to due process of law'
Douglas v. State        under both the United States and Alaska constitutions. (Citation) . . . . In recent years the Supreme Court has steadfastly refused to
(2009) 214 P.3d 312     'relax the requirements of the Confrontation Clause to accommodate the necessities of trial and the adversary process . . . .' (Melendez-
(Fabe, C.J, dissenting) Diaz.)" (328 and fn.3, Fabe, C.J., dissenting.)
                        "The parties will brief and argue the following issues: (1) Was defendant denied his right of confrontation under the Sixth Amendment
People v. Lopez         when the trial court admitted into evidence the results of blood-alcohol level tests and a report prepared by a criminalist who did not
(Virginia Hernandez)    testify at trial? (2) Was the error prejudicial in light of the testimony of a supervising criminalist about testing procedures at the lab? (3)
(2009) 102 Cal. Rptr. How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts . . . affect this court's decision in People
3d 283                  v. Geier (2007) 41 Cal.4th 555 [61 Cal. Rptr. 3d 580, 161 P.3d 104]?"
People v. Dungo         "The parties will brief and argue the following issues: (1) Was defendant denied his right of confrontation under the Sixth Amendment
(Reynaldo Santos)       when one forensic pathologist testified to the manner and cause of death in a murder case based upon an autopsy report prepared by
(2009) 102 Cal. Rptr. another pathologist? (2) How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts . . . affect this
3d 282                  court's decision in People v. Geier (2007) 41 Cal.4th 555 [61 Cal. Rptr. 3d 580, 161 P.3d 104]?"

People v.              "The issues to be briefed and argued are limited to the following: (1) Was defendant denied her right of confrontation under the Sixth
Rutterschmidt (Olga)   Amendment when a supervising criminalist testified to the result of drug tests and the report prepared by another criminalist? (2) How
(2009) 102 Cal. Rptr.  does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, affect this court's
3d 281                 decision in People v. Geier (2007) 41 Cal.4th 555?" Review denied for co-defendant who failed to object to this evidence at trial.
                       "The issues to be briefed and argued are limited to the following: (1) Was defendant denied his right of confrontation under the Sixth
                       Amendment when (a) one nurse practitioner testified to the results of a sexual assault examination and the report prepared by another,
People v. Gutierrez    and (b) a supervising criminalist testified to the result of DNA tests and the report prepared by another? (2) How does the decision of the
(Hugo) (2009) 102 Cal. United States Supreme Court in Melendez-Diaz v. Massachusetts . . . affect this court's decision in People v. Geier (2007) 41 Cal.4th
Rptr. 3d 281           555 [61 Cal. Rptr. 3d 580, 161 P.3d 104]?"

People v. Bradley    "The matter is transferred to the Court of Appeal, Second Appellate District, Division Two, with directions to vacate its decision and
(Allen James) (2009) reconsider the cause in light of Melendez-Diaz v. Massachusetts . . . and the forthcoming decision by the United States Supreme Court
2009 Cal. LEXIS 9889 in Briscoe, et al. v. Virginia (07-11191)."



People v. Benitez
(Samuel) (2009) 2009     "The cause is transferred to the Court of Appeal, Fourth Appellate District, Division Three, with directions to vacate its judgment and to
Cal. LEXIS 7196          reconsider the matter in light of Melendez-Diaz v. Massachusetts."
Citation                Court                 Date       Published?   Summary                       Evidence           Status of Case




People v. Green (2010)
2010 Cal.App. Unpub.                          Mar. 11,                Appeal from drug                                 conviction affirmed; Melendez-
LEXIS 1790             Cal. App. 2d Dist.     2010       N            convictions                   drug certificate   Diaz not applicable




People v. Jones (2010)
Cal. App. Unpub.                              Mar. 10,                Appeal from murder                               conviction affirmed; Melendez-
LEXIS 1745             Cal. App. 2d Dist.     2010       N            conviction                    DNA report         Diaz not applicable



                                                                                                                       conviction for possession of
                                                                                                                       drugs is reversed; Melendez-
                                                                                                                       Diaz applicable. Grant of
                                                                                                                       review by Supreme Court:
People v. Benitez                                                     Appeal from conviction for                       People v. Benitez (Samuel)
(2010) 2010 Cal. App.                         Feb. 24,                resisting an officer and drug                    (2009) 2009 Cal. LEXIS 7196
LEXIS 222               Cal. App. 4th Dist.   2010       Y            charges                       drug certificate   (see row 104 above).

                                                                      Appeal from judgment
People v. Gomez                                                       revoking probation and                           judgment affirmed; Melendez-
(2010) 181 Cal.App.4th                                                sentencing defendant to                          Diaz not applicable in
1028                   Cal. App. 2nd Dist. Feb. 4, 2010 Y             prison                        probation report   probation revocation hearings
Citation               Discussion
                       "We are thus faced with the question of whether, as defendant puts it, Melendez-Diaz clearly subsumed Geier. In our view, there are
                       two significant differences between Melendez-Diaz and Geier. [In Geier, unlike in Melendez-Diaz, the supervisor testified to the results
                       of the tests and the records were made contemporaneously.] We conclude that Geier is distinguishable from Melendez-Diaz on the two
                       bases discussed above, and it is still controlling in this state. . . . We turn now to whether the results of the chemical and instrumental
                       analyses in this case are admissible. Unlike the affidavits held inadmissible in Melendez-Diaz, there was live testimony in this case by
                       an expert about the analyst's qualifications, how the analyst was trained in laboratory procedures, and how the analyst performed the
                       chemical and instrumental analyses. Defense counsel was free to cross-examine the witness on any of these issues. Like the DNA
People v. Green (2010) results held admissible in Geier, the results of the substance analyses performed in this case were recorded contemporaneously, i.e., 'at
2010 Cal.App. Unpub. the same time that the analysis [was] conducted,' and during the regular course of business. Because the chemical and instrumental
LEXIS 1790             analyses conducted by the analyst in this case were clearly 'contemporaneous recordation[s] of observable events rather than the
                       "Respondent contends Melendez-Diaz is limited to the use of affidavits to prove the results of scientific lab tests, permitting Reynolds to
                       testify under Geier. We agree. [Footnote discussing cases where California Supreme Court has granted review and distinguishing from
                       other California appellate decisions.] We are bound to follow Melendez-Diaz in cases involving similar facts. (Citations.) [Melendez-Diaz]
                       . . . did not reach the issue decided in Geier, supra, 41 Cal.4th 555 and raised here -- whether a supervisor from a lab that conducted
                       DNA tests can render her own independent opinion during a trial based on the results of lab tests conducted by an analyst employed at
                       the lab, subject to full cross-examination by the defendant. Nor did the Melendez-Diaz court hint, much less suggest, that its reasoning
                       would extend to these circumstances. Instead, Justice Scalia, writing for the majority, framed the question before the court as 'whether
People v. Jones (2010) those [drug analysis] affidavits are 'testimonial,' rendering the affiants 'witnesses' subject to the defendant's right of confrontation under
Cal. App. Unpub.       the Sixth Amendment.' (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) Its holding was limited to a determination that the 'Sixth
LEXIS 1745             Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits . . . .' (Id. at p. 2542, fn. omitted.) . . . In
                       "Geier ruled a report of contemporaneous scientific observation recording “raw data” is admissible evidence under Crawford because
                       such a report is nontestimonial. (Geier, supra, 41 Cal.4th at p. 607.)" (5-6.) "The analyst‟s RFA and laboratory notes are accusatory and
                       subject to the requirements of the confrontation clause, despite their potential qualification as business records. Melendez-Diaz
                       undermined a foundation of Geier‟s rationale when it plainly rejected an argument that testimony based on “ „neutral scientific testing‟ "
                       is nontestimonial, stating it was based on a rule from Ohio v. Roberts (1980) 448 U.S. 56, overruled in Crawford, supra, 541 U.S. 36.
                       (Melendez-Diaz, supra, 129 S.Ct. at p. 2536.) . . . Melendez-Diaz explicitly rejected the argument that scientific data are not produced
                       against the defendant because the laboratory certificates 'certainly provided testimony against [the defendant], proving one fact
People v. Benitez      necessary for his conviction-that the substance he possessed was cocaine. (Melendez-Diaz.) These reports are testimonial because
(2010) 2010 Cal. App. they are used 'against the defendant, to establish an element of the crime. (Id.) In contrast to the declarant in Davis and analogous to
LEXIS 222              Melendez-Diaz, the analyst here prepared the report knowing of its contemplated use in litigation. . . . Contrary to the Attorney General‟s

                       "Although the probation report would constitute testimonial hearsay under the expansive definition developed in recent confrontation
People v. Gomez        clause cases, such as Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, the confrontation clause is inapplicable to the probation
(2010) 181 Cal.App.4th revocation context. But within the parameters established by the body of precedent applicable to probation revocation, we conclude that
1028                   the probation report was admissible and its admission did not violate defendant's due process right of confrontation." (1039.)
Citation                Court                 Date       Published?    Summary                      Evidence                   Status of Case




People v. Velazquez
(2009) 2009 Cal.App.                          Dec. 24,                 Appeal from conviction for                              judgment affirmed; Melendez-
LEXIS 2080              Cal. App. 4th Dist.   2009       N             drug offense                 drug certificate           Diaz not applicable
                                                                                                                               conviction affirmed; error is
                                                                                                                               harmless. Review denied by
People v. Vargas                                                                                                               People v. Vargas Arnulfo,
(2009) 178 Cal.App.4th                     Oct. 22,                    Appeal from rape             statements by victim in    2010 Cal. LEXIS 1451 (Cal.,
647                    Cal. App. 2nd Dist. 2009          Y             conviction                   Sexual Assault report      Feb. 3, 2010)




                                                                                                                               conviction affirmed; Melendez-
                                                                                                                               Diaz not applicable; Review
                                                         N                                                                     granted by People v. Gutierrez
People v. Gutierrez                                      (depublished                                                          (Hugo), 102 Cal. Rptr. 3d 281,
(2009) 177 Cal.                             Sept. 9,     by grant of  Appeal from conviction for    1) sexual assault report   220 P.3d 239 (see row 102,
App.4th 654             Cal. App. 2nd Dist. 2009         review)      sex crimes                    2) DNA report              above.)

                                                                                                                               Conviction reversed;
                                                                                                                               Melendez-Diaz applicable.
                                                                                                                               Petition for review granted by
                                                                                                                               People v. Lopez (Virginia
                                                         N                                                                     Hernandez), 102 Cal.Rptr.3d
People v. Lopez (2009)                                   (depublished Appeal from conviction of                                283, 220 P.3d 240, 2009 Cal.
177 Cal. App. LEXIS                           Aug. 31,   by grant of  vehicular manslaughter                                   LEXIS 12795 (Cal., Dec. 2,
1443                   Cal. App. 4th Dist.    2009       review)      while intoxicated             blood alcohol report       2009) (see row 99, above.)
Citation               Discussion
                       "Of importance [in Melendez-Diaz] was the fact that the affidavits at issue were prepared approximately a week after the tests had been
                       performed, and were intended for use at trial; thus they were not contemporaneous statements; they were 'near-contemporaneous'
                       statements. (Melendez-Diaz.) Of equal importance is the fact that no analyst testified in the Melendez-Diaz trial at all. The Supreme
                       Court commented on the significance of this fact in noting that "[l]ike the eyewitness who has fabricated his account to the police, the
                       analyst who provides false results may, under oath in open court, reconsider his false testimony." (Melendez-Diaz.) This factor
                       distinguishes Melendez-Diaz from Geier, along with the fact that the document in Melendez-Diaz was not a business record. This leads
                       us to conclude that People v. Geier, supra, 41 Cal.4th 555, has not been overruled. The California Supreme Court has recently granted
                       review in four cases involving this issue, some of which concluded that Geier had been impliedly overruled, and some concluding it was
                       still good law. 2 There are thus conflicting views regarding the current validity of Geier and the application of the Melendez-Diaz decision
People v. Velazquez    to situations involving the testimony of an expert forensic analyst, whose opinion is based on a forensic lab report prepared by a
(2009) 2009 Cal.App. nontestifying analyst. In our view, Geier is still controlling law in California after Melendez-Diaz because it is distinguishable from
LEXIS 2080             Melendez-Diaz on the grounds stated above." (14-15.)
                       Notes that Melendez-Diaz and Geier are inconsistent, but the statements in the report are testimonial even under the Geier standard
                       because: 1) The nurse acted in an agency relationship with law enforcement; 2) the statements were out-of-court-analogs to testimony
People v. Vargas       given by witnesses at trial; 3) the primary purpose of the examination was to establish some past fact for use in a criminal trial; and, 4)
(2009) 178 Cal.App.4th the victim's statements were not made to deal with a contemporaneous medical situation that required immediate information about
647                    what caused the injury.
                       "The first question we must decide is whether Geier is still controlling law after Melendez-Diaz. We conclude that it is, because it is
                       distinguishable from Melendez-Diaz on two grounds. First, in Geier the supervisor of the analyst who prepared the reports testified at
                       trial. No such testimony was introduced in Melendez-Diaz. (Citation.) Second, Melendez-Diaz involved only 'near-contemporaneous'
                       affidavits that were prepared almost one week after the tests were performed, whereas Geier involved contemporaneous reports
                       prepared at the time the tests were conducted. Melendez-Diaz does not state that, contrary to Geier, contemporaneous recordation of
                       observable events is testimonial; it says only that near-contemporaneous statements are testimonial. Geier held, in effect, that the lab
                       reports at issue were more like Davis‟s 911 tape than like Davis‟s statements made to police who were responding to a report of a
People v. Gutierrez    domestic disturbance. Melendez-Diaz casts no doubt on that holding. The second question we must decide, given our answer to the
(2009) 177 Cal.        first, is whether this case is controlled by Geier or Melendez-Diaz." (663-664.) Decides that case is analogous to Greier. "Thus, with
App.4th 654            respect to the contemporaneous notations in the report regarding the tests performed and observations made during the visual




                       "we conclude it was error under Crawford and Melendez to admit into evidence the blood-alcohol report created by Peña. That report is
People v. Lopez (2009) indistinguishable from the certificates described in Melendez and was therefore testimonial hearsay evidence admitted in violation of the
177 Cal. App. LEXIS    confrontation clause of the Sixth Amendment to the United States Constitution. There was no evidence Peña was unavailable and that
1443                   Lopez had the opportunity to cross-examine him before trial."
Citation                Court                Date       Published?   Summary              Evidence            Status of Case



                                                                                                              Conviction reversed;
                                                                                                              Melendez-Diaz applicable.
                                                                                                              Petition for review granted by
                                                        N                                                     People v. Dungo (Reynaldo
People v. Dungo                                         (depublished                                          Santos), 2009 Cal. LEXIS
(2009) 2009 Cal. App.                        Aug. 24,   by grant of  Appeal from murder                       12816 (Cal., Dec. 2, 2009)
LEXIS 1405              Cal. App. 3d Dist.   2009       review)      conviction           autopsy report      (see row 100, above)



                                                                                                              Conviction affirmed; Melendez-
                                                                                                              Diaz not violated when
                                                                                                              supervisor testified to report.
                                                                                                              Review granted by People v.
                                                        N                                                     Rutterschmidt (Olga), 220
People v.                                               (depublished                                          P.3d 239, 2009 Cal. LEXIS
Rutterschmidt (2009)                       Aug. 18,     by grant of  Appeal from murder                       12460 (Cal., 2009) (see row
176 Cal. App. 4th 1047 Cal. App. 2nd Dist. 2009         review)      conviction           toxicology report   101, above)




                                                                                                              Conviction affirmed; Melendez-
People v. Colon (2010)                                                                                        Diaz issue not preserved and
2010 Cal. App. Unpub.                        Feb. 22,                Appeal from drug                         Melendez-Diaz not applicable.
LEXIS 1280             Cal. App. 5th Dist.   2010       N            convictions          drug certificate    (Dissent disagrees.)




People v. Barba (2010)
2010 Cal. App. Unpub.                      Feb. 19,                  Appeal from murder                       Conviction affirmed; Melendez-
LEXIS 1279             Cal. App. 2nd Dist. 2010         N            conviction           DNA report          Diaz not applicable.
Citation                 Discussion
                         "Given the court's holding in Melendez-Diaz, there can be little doubt that Dr. Bolduc's autopsy report is testimonial. The purpose of an
                         autopsy is to determine the circumstances, manner, and cause of death. (Citations.) The findings resulting from the autopsy must be
                         'reduced to writing' or otherwise permanently preserved. (Gov. Code, § 27491.4.) Upon determining that there are reasonable grounds
                         to suspect that a death 'has been occasioned by the act of another by criminal means,' the coroner must 'immediately notify the law
                         enforcement agency having jurisdiction over the criminal investigation.' (Gov. Code, § 27491.1) Moreover, this court recently concluded
                         that 'officially inquiring into and determining the circumstances, manner and cause of a criminally related death is certainly part of a law
                         enforcement investigation.' (Citation.) These circumstances, coupled with the fact that Dr. Bolduc's report was prepared in the midst of
People v. Dungo          a homicide investigation, a circumstance of which he was no doubt aware given that a homicide detective who was investigating Pina's
(2009) 2009 Cal. App.    death was present at the autopsy (Gov. Code, § 27491.4), establish that Dr. Bolduc's autopsy report was testimonial. As with the
LEXIS 1405               certificates at issue in Melendez-Diaz, the autopsy report constitutes a 'solemn declaration or affirmation made for the purpose of

                         "Golay, however, argues that Geier‟s holding and rationale have been rendered obsolete by the federal Supreme Court's recent holding
                         in Melendez-Diaz. We disagree. . . . Here, in contrast, the toxicological findings were not proved by means of an affidavit. As we have
                         shown, Muto testified as a qualified expert, subject to cross-examination, that his review of data obtained under his supervision
                         supported his conclusion as to the presence of alcohol and drugs in biological samples taken from McDavid's body. The Melendez-Diaz
                         decision did not reach the question of whether such expert testimony runs afoul of Crawford. Indeed, the lead opinion speaks for a court
                         majority only on the narrow basis set forth in Justice Thomas's concurring opinion—'that „the Confrontation Clause is implicated by
                         extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior
People v.                testimony, or confessions.‟ [Citations.]” (Melendez-Diaz, 129 S.Ct. at p. 2543] (conc. opn. of Thomas, J.).) Accordingly, the testimony
Rutterschmidt (2009)     challenged by defendant Golay does not fall within the Melendez-Diaz majority's holding." (1074-1075.)
176 Cal. App. 4th 1047
                         Defendant waived his claim when he failed to object at trial. "Melendez-Diaz itself specifically addressed the defendant's obligation to
                         preserve review of confrontation clause issues…." (33-34.) Defendant's argument that his failure to object should be excused because
                         Melendez-Diaz could not have been anticipated fails because the Melendez-Diaz decision "involve[d] little more than the application" of
                         the holding in Crawford. (Melendez-Diaz.) ", even if defense counsel's failure to object did not waive the Sixth Amendment issue, or
                         counsel was ineffective for failing to object, we find counsel's omission was not prejudicial because Melendez-Diaz did not overrule
                         Geier. There are important distinctions between the cases" (46): "The instant case is also distinguishable from Melendez-Diaz because
                         the prosecution's evidence as to the nature of the substance found in defendant's pocket was not introduced through a bare affidavit or
People v. Colon (2010)   certificate. Instead, Spencer, the supervising criminalist, testified at trial and was subject to cross-examination as to the nature of
2010 Cal. App. Unpub.    Kennedy's tests. Spencer had personal knowledge about the types of tests conducted on contraband, and explained the laboratory's
LEXIS 1280               protocols for conducting such tests. In contrast to Melendez-Diaz, Spencer extensively testified as to the chain of custody of the
                         "[Melendez-Diaz] did not reach the issue decided in Geier, supra, 41 Cal.4th 555 and raised here -- whether the director of a lab that
                         conducted DNA tests can render an opinion based on the results of lab tests conducted by an analyst employed at the lab, subject to full
                         cross-examination by the defendant.
                         Nor did the Melendez-Diaz court hint, much less suggest, that its reasoning would extend to these circumstances. . . . Its holding was
                         limited to a determination that the "Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court
People v. Barba (2010)   affidavits In short, Melendez-Diaz did not overrule Geier and its holding has no application here. Accordingly, we deem Geier to be
2010 Cal. App. Unpub.    controlling authority on this issue and, as in arba I, we hold that under Geier, having Reynolds testify instead of Wong -- subject to
LEXIS 1279               vigorous cross-examination -- did not violate Barba's confrontation rights." (31-32.)
Citation                Court                 Date       Published?   Summary                     Evidence                Status of Case




People v. Chavez
(2010) 2010 Cal. App.                        Feb. 19,                 Appeal from conviction of                           conviction affirmed; Melendez-
Unpub. LEXIS 1192       Cal. App. 2nd. Dist. 2010        N            drug related offenses       lab report              Diaz not applicable




People v. Castaneda
(2010) 2010 Cal. App.                         Feb. 18,                Appeal from robbery                                 conviction affirmed; any error
Unpub. LEXIS 1129       Cal. App. 6th Dist.   2010       N            conviction                  DNA report              is harmless




People v. Gutierrez                                                                                                       conviction affirmed (in this
(2010) 2010 Cal. App.                         Jan. 21,                Appeal from rape, burglary,                         respect); Melendez-Diaz not
Unpub. LEXIS 425        Cal. App. 2d Dist.    2010       N            and assault charges         Sexual assault report   applicable




People v. Schwarz
(2010) 2010 Cal. App.                         Jan. 21,                Appeal from drug and                                drug conviction reversed;
Unpub. LEXIS 378        Cal. App. 3d Dist.    2010       N            firearm convictions         drug certificate        Melendez-Diaz applicable
Citation                Discussion

                        Supervising criminalist testified about a lab report prepared by another person in the lab. Defense did not object. "under People v. Geier
                        (2007) 41 Cal.4th 555, the laboratory report is not testimonial evidence for purposes of the confrontation clause. Rather, such laboratory
                        reports are contemporaneous recordations of observable events, admissible as business records. (Id. at pp. 605-606.) Melendez-Diaz is
                        distinguishable in that the notarized certificates of the analysts at issue there were executed a week after the tests had been done, and
                        were prepared for use at trial. Thus, the notarized certificates were not contemporaneous statements. (Melendez-Diaz.) Melendez-Diaz
                        is further distinguishable in that no analyst testified at all in that case; there was no one to cross-examine concerning the proffered
People v. Chavez        analyses. By contrast, defendant here was afforded the opportunity to cross-examine the supervising criminalist who had overseen the
(2010) 2010 Cal. App.   testing criminalists' work. Although the California Supreme Court has recently granted review in several cases to consider the issue,
Unpub. LEXIS 1192       (fn.) we continue to regard Geier as controlling, because it is distinguishable from Melendez-Diaz on the grounds stated." (4-5.)
                        "A few days after the United States Supreme Court issued its decision in Melendez-Diaz, it denied certiorari in Geier. Our Supreme
                        Court has recently granted review in four cases, some of which concluded that Geier has been impliedly overruled, and some
                        concluding that Geier is still good law. (Citations.) Geier held that an expert witness could testify about and rely on the contents of a lab
                        analysis report not prepared by the witness, because the report was a business record and not testimonial. Melendez-Diaz held that an
                        affidavit in the form of certificates of the lab analysts prepared for trial a week after the actual lab analysis was not a business record
                        and was testimonial, so the defendant was entitled to cross-examine the analyst. And, in that case, no analyst testified as to the test
                        results.
                        In the case before us, Aceves testified that she was a criminalist supervisor at a lab that did the DNA testing, and she explained her
People v. Castaneda     training and experience. The prosecutor did not specifically offer her as an expert witness but the court overruled the defense's
(2010) 2010 Cal. App.   objection to her review of lab reports as an expert witness. Aceves testified she reviewed the test results from her lab and she initialed
Unpub. LEXIS 1129       her report, but she did not type it. During her direct examination, when the prosecutor asked her about the test results, she reviewed

                        "Unlike the affidavits in Melendez-Diaz, the reports in our case were not formalized materials. Significantly, neither report purported to
                        give a post-event description of an act like that provided by the witness in Hammon, evidence that Justice Thomas did not believe was
                        testimonial. There, the witness gave a written description of a domestic violence incident to police who responded to her home. Thus,
                        there is grave doubt whether the Melendez-Diaz rationale would be extended by a majority of the court to apply to reports relied upon by
                        expert witnesses who are subject to cross-examination. . . . 'The Sixth Amendment does not permit the prosecution to prove its case
People v. Gutierrez     via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.' (Melendez-Diaz.) We do not
(2010) 2010 Cal. App.   interpret this language as referring to material upon which an expert may rely. Instead, it applies to the evidence, such as the expert's
Unpub. LEXIS 425        opinion, that provides the basis for the conviction." (18-20.)

                        "Melendez-Diaz held the affidavits were testimonial and the procedure prevented any cross-examination of the analysts: 'In short, under
                        our decision in Crawford the analysts' affidavits were testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth
                        Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-
                        examine them, petitioner was entitled to '"be confronted with"' the analysts at trial.' (Melendez-Diaz.) In this case, defendant had no
                        effective means to challenge whether Henry, the laboratory analyst, correctly performed the tests reflected by her written report.
People v. Schwarz       Bartneck's testimony, in effect, was that Henry was a diligent and experienced analyst, and that he believed she competently performed
(2010) 2010 Cal. App.   the tests her report states she performed, with the results stated in the report. Although Bartneck was cross-examined, that did not
Unpub. LEXIS 378        enable defendant to confront Henry. Accordingly, we conclude defendant's Sixth Amendment rights were violated in this case." (7-8.)
Citation                Court                 Date       Published?   Summary                   Evidence                Status of Case




People v. Alcantara
(2009) 2009 Cal. App.                         Dec. 30,                Appeal from murder        blood sample chain of
Unpub. LEXIS10356       Cal. App. 2d Dist.    2009       N            conviction                custody                 judgment affirmed




People v. Velazquez
(2009) 2009 Cal. App.                         Dec. 24,                Appeal from robbery and                           judgment affirmed; Melendez-
Unpub. LEXIS 10391      Cal. App. 4th Dist.   2009       N            drug convictions          drug certificate        Diaz not applicable




People v. Anunciation
(2009) 2009 Cal. App.                         Dec. 22,                Appeal from drug                                  judgment reversed; Melendez-
Unpub. LEXIS 10128      Cal. App. 4th Dist.   2009       N            conviction                autopsy report          Diaz applicable



People v. Martinez
(2009) 2009 Cal. App.                         Dec. 18,                Appeal from murder                                judgments affirmed; any error
Unpub. LEXIS 10039      Cal. App. 5th Dist.   2009       N            conviction                autopsy report          is harmless
Citation                Discussion

                        "As the U.S. Supreme Court has explained: "Contrary to the dissent's suggestion (citation) we do not hold, and it is not the case, that
                        anyone whose testimony may be relevant in establishing the chain of custody . . . must appear in person as part of the prosecution's
                        case.' . . . Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
                        (Citation).' (Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, 2532, fn. 1].) The parties stipulated that a declaration from the
                        custodian of records at the Red Cross be treated as the testimony of the declarant. That declaration and associated documents showed
                        that Bennett gave blood to the Red Cross on February 3 or 5, 1983, the blood was labeled 006GL68732, and an invoice showed that
People v. Alcantara     that blood was shipped to Kaiser Hospital. This is evidence that the blood sent by the Red Cross was Bennett's blood. Detective Kienast
(2009) 2009 Cal. App.   testified that she obtained a blood sample from Kaiser labeled GL68732. These links connect the blood analyzed by police to Bennett.
Unpub. LEXIS10356       Under the circumstances, it is reasonably certain that there was no alteration" (50.)

                        "Of equal importance is the fact that no analyst testified in the Melendez-Diaz trial at all. . . . This factor distinguishes Melendez-Diaz
                        from Geier, along with the fact that the document in Melendez-Diaz was not a business record. This leads us to conclude that People v.
                        Geier, supra, 41 Cal.4th 555, has not been overruled. (fn omitted.) The California Supreme Court has recently granted review in four
                        cases involving this issue, some of which concluded that Geier had been impliedly overruled, and some concluding it was still good law.
                        (fn omitted.) There are thus conflicting views regarding the current validity of Geier and the application of the Melendez-Diaz decision to
                        situations involving the testimony of an expert forensic analyst, whose opinion is based on a forensic lab report prepared by a
                        nontestifying analyst. In our view, Geier is still controlling law in California after Melendez-Diaz because it is distinguishable from
People v. Velazquez     Melendez-Diaz on the grounds stated above." (14.) "In any event, although the defendant objected to the testimony of the analyst who
(2009) 2009 Cal. App.   did not personally perform the testing, he did not object to the actual (hearsay) lab reports." (16.)
Unpub. LEXIS 10391
                        Defendant did not waive his confrontation clause rights because he failed to object because any objection would have been futile under
                        Geier. "Because Geier has not been overruled, we examine whether we may decline to follow it on the ground that its reasoning cannot
                        be reconciled with Melendez-Diaz. Geier is based on at least three analytical premises that are addressed, and undermined, in
                        Melendez-Diaz. First, Geier posits that the results of scientific tests are not accusatory, but are rather inherently neutral and reliable. . . .
                        Melendez-Diaz found no support in the Sixth Amendment or case law for that idea, stating that the confrontation clause applies to all
                        witnesses against the defendant, not simply those who are accusatory. Melendez-Diaz also rejects the contention that evidence of
                        scientific testing is inherently reliable . . . . Second, Geier construed Crawford and Davis as holding that a statement was not testimonial
People v. Anunciation   if it represented the contemporaneous recordation of observable events. . . . Melendez-Diaz, on the other hand, minimized the weight to
(2009) 2009 Cal. App.   be given to contemporaneity in confrontation clause analysis. Melendez-Diaz emphasized that courts must focus instead on whether the
Unpub. LEXIS 10128      statements were " ' "made under circumstances which would lead an objective witness reasonably to believe that the statement would
                        "California's intermediate courts have come to differing conclusions concerning Geier's continuing viability following Melendez-Diaz and
                        the California Supreme Court recently granted review in a number of cases in order to address the issue. (Citations.) We need not take
                        sides in this debate at this point -- or, for that matter, offer our opinion concerning the continued vitality of cases such as People v. Clark
People v. Martinez      (1992) 3 Cal.4th 41, 158-159 and People v. Beeler (1995) 9 Cal.4th 953, 979-980, which deal with one physician testifying about the
(2009) 2009 Cal. App.   report of the physician who actually conducted the autopsy, and admission of that report as a public or business record -- because any
Unpub. LEXIS 10039      error did not prejudice appellants." (65-66.)
Citation                Court                 Date        Published?   Summary                   Evidence                 Status of Case




People v. Petillo (2009)
2009 Cal. App. Unpub.                         Dec. 14,                 Appeal from murder        fingerprint comparison   judgment affirmed; any error
LEXIS 9816               Cal. App. 2d Dist.   2009        N            conviction                report                   is harmless

People v. Sanford                                                      Appeal from attempted
(2009) 2009 Cal. App.                                                  murder and assault with   statements against       judgment affirmed in part and
Unpub. LEXIS 9654       Cal. App. 2d Dist.    Dec. 7, 2009 N           firearm charges           interest                 reversed in part.


People v. Vasquez
(2009) 2009 Cal. App.                                                  Appeal from kidnapping                             judgment affirmed; any error
Unpub. LEXIS 9576      Cal. App. 2d Dist.     Dec. 2, 2009 N           convictions               Sexual assault report    is harmless
People v. Ayala (2009)
2009 Cal. App. Unpub.                                                  Appeal from drug          out-of-court statement by
LEXIS 8870             Cal. App. 2d Dist.     Nov. 6, 2009 N           conviction                witness                   judgment affirmed




People v. Bingley
(2009) 2009 Cal. App.                                                  Appeal from drug                                   judgment affirmed; Melendez-
Unpub. LEXIS 8759       Cal. App. 2d Dist.    Nov. 3, 2009 N           conviction                drug certificate         Diaz not applicable




People v. Alvarez
(2009) 2009 Cal. App.                         Oct. 26,                 Appeal from murder        DMV record showing        judgment affirmed; Melendez-
Unpub. LEXIS 8502       Cal. App. 5th Dist.   2009        N            conviction                defendant is owner of car Diaz not applicable
Citation                 Discussion
                         "Melendez-Diaz held: 'The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits. . . .'
                         (Citation.) In People v. Geier (2007) 41 Cal.4th 555, 607, our Supreme Court also found no Confrontation Clause error where Dr. Robin
                         Cotton, who testified at trial, relied upon the data compiled by other scientists in forming an opinion about the results of deoxyribonucleic
                         acid testing. . . . In this case, Ms. Duke was not merely qualified to offer opinion testimony in the field of latent print comparisons, but
                         was the forensic scientist that personally performed the comparison in question. Ms. Duke was subject to extensive cross-examination
                         regarding her findings. Defendant's objections relate to the report of the properly qualified opinion witness who verified her findings as
People v. Petillo (2009) part of the routine protocol of the police department's scientific investigation division. Ms. Duke could logically rely on the reviewing
2009 Cal. App. Unpub. specialists' findings that her conclusions were correct. Any question about that verification could have been and were posed to her
LEXIS 9816               directly on cross-examination. As a result, no Confrontation Clause violation occurred. In any event, any error in admitting the
                         Implies that Melendez-Diaz has overruled Geier, citing: "'Finally, such statements, even if admissible are nonetheless subject to
People v. Sanford        Evidence Code section 352 under which 'the trial court is required to weigh the evidence's probative value against the dangers of
(2009) 2009 Cal. App. prejudice, confusion, and undue time consumption.' [Citation.]' (People v. Geier (2007) 41 Cal.4th 555, 584-585, overruled on another
Unpub. LEXIS 9654        ground in Melendez-Diaz (2009) 557 U.S. , [129 S.Ct. 2527, 2532].)" (21-22.)
                         "Following Melendez-Diaz, a split of authority developed in this state regarding the admissibility of expert testimony based on reports
                         prepared by nontestifying witnesses. . . . In this case, defendants argue that the Attorney General's reliance on Geier, supra, 41 Cal.4th
People v. Vasquez        555, is no longer warranted in light of these recent developments. . . . It is clear that until a higher court decides this issue, reasonable
(2009) 2009 Cal. App. minds will continue to disagree on its proper resolution. In any event, regardless of the ultimate resolution, we may properly decide this
Unpub. LEXIS 9576        appeal on the ground that defendants have failed to show prejudice." (9-11.)
People v. Ayala (2009)
2009 Cal. App. Unpub. Melendez-Diaz only cited for the proposition that "violation of a defendant's Confrontation Clause rights is subject to harmless error
LEXIS 8870               review." (8.)
                         "We are thus faced with the question of whether, as appellant puts it, Melendez-Diaz has effectively overruled Geier. In our view, there
                         are two significant differences between Melendez-Diaz and Geier. [The lab director testified in Geier and no live testimony was offered
                         in Melendez-Diaz and the DNA results in Geier were a contemporaneous recordation and the affidavits in Melendez-Diaz were made a
                         week later.] We conclude that Geier is distinguishable from Melendez-Diaz on the two bases discussed above, and is still controlling in
                         this state. Our decision is supported by two recent appellate decisions. [discusses decisions, both of which are now under review by the
                         California Supreme Court] We turn now to whether the results of the chemical and instrumental analyses in this case are admissible.
                         Unlike the affidavits held inadmissible in Melendez-Diaz, there was live testimony in this case by an expert about how the analyst
People v. Bingley        performed the chemical and instrumental analyses, how the analyst met all of the competency requirements imposed by the laboratory,
(2009) 2009 Cal. App. how the tests performed by the analyst were standard within the field of narcotics drug testing, and how the results appeared valid to
Unpub. LEXIS 8759        her. Defense counsel was free to cross-examine the witness on any of these issues. Like the DNA results held admissible in Geier, the
                         "The United States Supreme Court recently held that affidavits reporting the results of forensic analysis showing material seized by
                         police and connected to the defendant was cocaine, were 'testimonial' within the meaning of Crawford . . . . (Melendez-Diaz v.
                         Massachusetts (2009) 129 S.Ct. 2527, 2530-2532.) As Crawford itself recognizes, however, business records are not, by their nature,
                         testimonial. (Crawford, supra, 541 U.S. at p. 56; see Melendez-Diaz v. Massachusetts, supra, 129 S.Ct. at p. 2532, fn. 1.) . . . When, as
People v. Alvarez        in the case of the DMV record here, they are not 'produced to be used in a potential criminal trial or to determine whether criminal
(2009) 2009 Cal. App. charges should issue,' 'they are subject to the same analysis as business records and would not constitute 'testimonial statements.'
Unpub. LEXIS 8502        (Ibid.)." (46-47, fn. 6.)
Citation                Court                 Date        Published?   Summary                      Evidence                  Status of Case
People v. Franks                                                                                                              judgment affirmed; issue
(2009) 2009 Cal. App.                         Oct. 20,                 Appeal from assault with a   out-of-court statement by waived; Melendez-Diaz not
Unpub. LEXIS 8328       Cal. App. 4th Dist.   2009        N            deadly weapon conviction     therapist                 applicable

People v. Dyer (2009)
2009 Cal. App. Unpub.                         Sept. 28,                Appeal from murder                                    judgment affirmed; Melendez-
LEXIS7746             Cal. App. 2d Dist.      2009        N            convictions                 n/a                       Diaz not applicable
                                                                       Appeal from probation
People v. Barnes                                                       revocation hearing for                                judgment affirmed; Melendez-
(2009) 2009 Cal. App.                         Sept. 24,                defendant convicted of drug                           Diaz not applicable in
Unpub. LEXIS 7630       Cal. App. 4th Dist.   2009        N            crimes                      drug certificate          probation revocation hearings




                                                                                                                             judgment affirmed; no
People v. Rodriguez                                                                                                          ineffective assistance of
(2009) 2009 Cal. App.                         Sept. 22,                Appeal from DUI and drug                              counsel for waiving
Unpub. LEXIS 7560       Cal. App. 3d Dist.    2009        N            convictions                  drug certificate         confrontation clause claim
People v. Navarro
(2009) 2009 Cal. App.                         Sept. 21,                Appeal from drug                                      judgment affirmed; any error
Unpub. LEXIS 7522       Cal. App. 2d Dist.    2009        N            conviction                   drug certificate         is harmless




People v. Ellis (2009)
2009 Cal. App. Unpub.                         Sept. 18,                Appeal from drug                                      judgment affirmed; Melendez-
LEXIS 7497             Cal. App. 2d Dist.     2009        N            conviction                   drug certificate         Diaz not applicable


People v. Hilson (2009)
2009 Cal. App. Unpub.                         Sept. 17,                Appeal from burglary                                  judgment affirmed under
LEXIS 7461              Cal. App. 2d Dist.    2009        N            conviction                   hearsay statements       Crawford
Citation              Discussion
People v. Franks      "The United States Supreme Court recently decided Melendez-Diaz v. Massachusetts (2009) [129 S.Ct. 2527]. In that case, the court
(2009) 2009 Cal. App. said affidavits reporting the results of forensic tests were testimonial. (Id.) But the instant case involved no affidavits reporting test
Unpub. LEXIS 8328     results." (8.)
                      "we summarily reject appellant's somewhat baffling argument that the trial court denied him his Sixth Amendment right to confront
People v. Dyer (2009) Dixon. The trial court did not admit any out-of-court statements made by Dixon during trial, and Dixon did not testify against appellant.
2009 Cal. App. Unpub. Because Dixon was not a witness against appellant, appellant's confrontation right was not implicated. (Melendez-Diaz v.
LEXIS7746             Massachusetts (2009) 129 S.Ct. 2527, 2531" (26-27.)

People v. Barnes        "The Melendez-Diaz court's Sixth Amendment analysis was in the context of a trial, not a probation revocation hearing. The Johnson
(2009) 2009 Cal. App.   court's holding that '[p]robation revocation proceedings are not 'criminal prosecutions' to which the Sixth Amendment applies' remains
Unpub. LEXIS 7630       valid. (People v. Johnson, supra, 121 Cal.App.4th at p. 1411.)" (6.)
                        Defendant waived his confrontation clause claims and instead appeals based on ineffective assistance of counsel. "Defense counsel's
                        performance was not deficient. . . . Several months after defendant's trial, certiorari was granted in Melendez-Diaz (Mar. 17, 2008, No.
                        07-591, U.S. [170 L.Ed.2d 352]). Therefore, if defense counsel had objected to the testimony of the criminal laboratory supervisor,
                        the trial court would have been required to follow Geier, supra, 41 Cal.4th 555 (Citation). Any objection would have been futile.
                        Moreover, Melendez-Diaz is distinguishable. A sworn affidavit, in lieu of testimony, was used to prove a fact, that is, the nature and
                        weight of the controlled substance. Here, a criminal laboratory supervisor testified about the results of the analysis of the substances
                        done by someone else. The supervisor opined that the analyst followed established laboratory procedures. The analyst made notes
People v. Rodriguez     during the testing and, based on the notes, prepared a report. The supervisor reviewed the notes and report and testified about the
(2009) 2009 Cal. App. same. Although the report was admitted into evidence without objection (and probably erroneously admitted since the report seems to
Unpub. LEXIS 7560       fall within the "core class of testimonial statements" identified in Crawford (Melendez-Diaz, supra, U.S. [174 L.Ed.2d at p. 321])),
People v. Navarro       "Under Melendez-Diaz, the introduction of Gossage's testimony and Laramie's report raises significant constitutional questions.
(2009) 2009 Cal. App. However, we need not decide the precise scope of Melendez- Diaz because assuming the admission of the evidence was error, it was
Unpub. LEXIS 7522       "We have (8.)
                        harmless."held that Geier is still good law after Melendez-Diaz. (People v. Gutierrez (Sept. 9, 2009, B211622) Cal.App.4th [p. 14].)
                        We distinguished Geier on the grounds that it involved contemporaneous (rather than merely "near contemporaneous") recordation of
                        observable events and that the supervisor of the analysts who prepared the reports testified at trial (no similar live testimony was
                        introduced in Melendez-Diaz). (People v. Gutierrez, supra, Cal.App.4th at p. [p. 14].) The question before us, then, is whether this
                        case is controlled by Geier or by Melendez-Diaz. We conclude that Geier controls. Here, as in Geier, the supervisor of the analyst who
                        prepared the reports testified at trial, described the tests reflected in the reports, confirmed that those tests are generally accepted
                        within the scientific community, and was fully subject to cross-examination by the defense. Here, as in Geier, the reports were prepared
                        at the time the tests were conducted, not "almost a week after the tests were performed," as in Melendez-Diaz. (Citation.) This is
People v. Ellis (2009) therefore a Geier case, not a Melendez-Diaz case. The reports consequently were not testimonial, so their admission did not violate
2009 Cal. App. Unpub. Ellis' confrontation rights." (32-33.)
LEXIS 7497
                        "Nacias did not testify at trial. Over appellant's objections, the trial court allowed the officers to recount Nacias' statements to them and
                        also allowed the 911 tape to be played to the jury. . . . The trial court found that Nacias's statements were spontaneous under Evidence
People v. Hilson (2009) Code section 1240, and because they were not testimonial, their admission was not precluded by the Sixth Amendment, as interpreted
2009 Cal. App. Unpub. in Crawford and its progeny. [fn 7:In June, 2009, the United States Supreme Court reiterated and applied Crawford in Melendez-Diaz v.
LEXIS 7461              Massachusetts.] The trial court was correct." (8-9 and fn. 7)
Citation                Court                 Date         Published?   Summary                      Evidence                Status of Case


People v. Benjamin
(2009) 2009 Cal. App.                         Sept. 15,                 Appeal from murder and                               judgment affirmed; Melendez-
Unpub. LEXIS 7412       Cal. App. 2d Dist.    2009         N            burglary convictions         DNA report              Diaz argument waived


People v. Rocha
(2009) 2009 Cal. App.                         Sept. 1,                  Appeal from murder                                   judgment affirmed; Melendez-
Unpub. LEXIS 7079       Cal. App. 3d Dist.    2009         N            conviction                   gang expert testimony   Diaz not applicable

People v. Pineda                                                        Appeal from gross
(2009) 2009 Cal. App.                         Aug. 27,                  vehicular manslaughter                               judgment affirmed; any error
Unpub. LEXIS 6960       Cal. App. 2d Dist.    2009         N            while intoxicated conviction blood test report       is harmless



People v. Carruth                                                                                                            judgment affirmed; Melendez-
(2009) 2009 Cal. App.                         Aug. 19,                  Appeal from drug                                     Diaz is applicable, but error is
Unpub. LEXIS 6697       Cal. App. 1st Dist.   2009         N            conviction                   drug certificate        harmless




                                                                                                                             judgment affirmed; Melendez-
People v. Quezada                                                                                    ballistics report and   Diaz not applicable regarding
(2009) 2009 Cal. App.                                                   Appeal from murder           testimony regarding     testimony and error is
Unpub. LEXIS 6168       Cal. App. 2d Dist.    Jul. 30, 2009 N           convictions                  report                  harmless regarding report
                                                                                                                             Judgment reversed; US
                                                                                                                             Supreme Court certiorari
                                                                                                                             denied by Del. v. Cooke, 2010
Cooke v. State (2009)   Delaware Supreme                                Appeal from murder, rape,                            U.S. LEXIS 1063 (U.S., Feb.
977 A.2d 803            Court            Jul. 21, 2009 Y                and burglary convictions     n/a                     22, 2010)


State v. McCurdy
(2010) 2010 Del. C.P.   Delaware Court of                               Motion to compel discovery service records of
LEXIS 6                 Common Pleas          Feb. 3, 2010 N            regarding DUI arrest       intoxilyzer               motion denied
Citation                Discussion
                        "Melendez-Diaz is distinguishable. Unlike the defendant in that case, appellant did not object to the admission of the analysts' reports. . .
                        . In Melendez-Diaz the Supreme Court noted: '[W]hat testimony is introduced must (if the defendant objects) be introduced live.'
People v. Benjamin      (Melendez-Diaz.) Moreover, in Melendez-Diaz no expert testified concerning the analysis of the substance in question. . . . Here, in
(2009) 2009 Cal. App.   contrast, an expert testified concerning the DNA testing. . . . Because appellant did not object and Higgins was subject to cross-
Unpub. LEXIS 7412       examination, appellant's Sixth Amendment confrontation rights were not infringed." (14-16.)
                        "Defendant has failed to show Melendez-Diaz is inapplicable to this case. No affidavits or other formalized testimonial materials are
                        involved. Defendant simply asserts there was testimonial hearsay; he does not explain why any of the hearsay relied upon by the gang
People v. Rocha         expert was testimonial or even identify the offending evidence. In short, defendant offers no reason for this court to reconsider
(2009) 2009 Cal. App.   established California law that a gang expert's reliance on hearsay matters in forming his opinion does not violate the Sixth Amendment.
Unpub. LEXIS 7079       (Citation)" (23-24.)

People v. Pineda        "We need not decide whether the trial court's admission of the 2005 blood test result was erroneous in light of Melendez-Diaz because
(2009) 2009 Cal. App.   we conclude any error was harmless beyond a reasonable doubt. (Citation.) Leaving aside the result of the 2005 blood test, there was
Unpub. LEXIS 6960       overwhelming evidence presented at trial of defendant's intoxication." (21-22.)
                        "Here, as in Melendez-Diaz, Allen's lab report was admitted for the truth of the matter stated therein, namely that the substance tested
                        was cocaine base. The prosecution did not elicit Meldrum's expert opinion as to the narcotic nature of the drugs based on that lab
                        report. She merely attested to Allen's curriculum vitae and as the custodian of records for the report. We therefore conclude, under
People v. Carruth       Melendez-Diaz, that admission of Allen's report violated appellant's confrontation rights. In response to our invitation for supplemental
(2009) 2009 Cal. App.   letter briefing, the Attorney General concedes the error in light of Melendez-Diaz. . . . The error here was harmless beyond a reasonable
Unpub. LEXIS 6697       doubt." (10-11.)
                        "Here Maruoka relied on the nontestimonial ballistic evidence resulting from Arredondo having test-fired the gun recovered from Perez's
                        car, when making his own comparison of the physical evidence. Though he was aware of Driver's conclusions, Maruoka made his own
                        judgment, independent of those of Driver. As Maruoka was present in court and subject to confrontation and cross-examination
                        concerning his own first hand analysis, there was no hearsay or any other issue with his testimony on that point. In contrast, the
                        introduction of Driver's report of her findings and conclusions seems to fall squarely into the 'core class of statements' recently
People v. Quezada       addressed by the United States Supreme Court in Melendez-Diaz v. Massachusetts. However, since the testimony of Maruoka was
(2009) 2009 Cal. App.   properly admitted and reached the same result after similar analysis to that in Driver's report, the admission of the report, though
Unpub. LEXIS 6168       probably erroneous, was harmless beyond a reasonable doubt." (21-22.)



Cooke v. State (2009)
977 A.2d 803            Melendez-Diaz cited for the issue of "meaningful adversarial testing" only. (848-849.)
                        "The defense requests records pertaining to the intoxilyzer used in this case, including records concerning service, modifications and
                        calibration checks on the intoxilyzer. The defense contends that Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314,
State v. McCurdy        2009 WL 1789468 (U.S.), supports its request for these intoxilyzer records. . . . If, as the State maintains, the Forensic Chemist will be
(2010) 2010 Del. C.P.   made available to the defense for questioning, the Melendez-Diaz ruling is immaterial to the Court's consideration of the defense's
LEXIS 6                 motion to compel the intoxilyzer's records." (6-7.)
Citation                Court           Date        Published?    Summary                      Evidence                  Status of Case



                                                                   Appeal from convictions for
Little v. United States                             Y (but subject armed robbery and                                    Judgment affirmed; Melendez-
(2010) 2010 D.C. App. D.C. Court of     Feb. 25,    to formal      possession of an                                     Diaz is applicable, but no plain
LEXIS 82                Appeals         2010        revision)      unregistered firearm        Certificate of No Record error


Mungo v. United States                              Y (but subject                                                       Judgment affirmed; Melendez-
(2010) 2010 D.C. App. D.C. Court of     Jan. 28,    to formal      Appeal from murder                                    Diaz assumed to apply, but no
LEXIS 26               Appeals          2010        revision)      convictions                 autopsy report            plain error




Mitchell v. United
States (2009) 985 A.2d D.C. Court of    Dec. 31,                  Appeal from murder                                    Judgment affirmed; Melendez-
1125                   Appeals          2009        Y             convictions                  Certificate of No Record Diaz issue waived


Walker v. United                                                  Appeal from possession of
States (2009) 982 A.2d D.C. Court of    Oct. 22,                  an unregistered firearm and                          convictions reversed; no need
723                    Appeals          2009        Y             other convictions           Certificate of No Record to reach Melendez-Diaz issue


                                                                                                                         Melendez-Diaz applicable;
Digsby v. United States D.C. Court of                             Appeal from drug                                       one judgment affirmed
(2009) 981 A.2d 598     Appeals         Oct. 1, 2009 Y            convictions                  drug certificate          (harmless error), one reversed




Tabaka v. State (2009) D.C. Court of                                                                                  conviction reversed; Melendez-
976 A. 2d 173          Appeals          Ju. 16, 2009 Y            Appeal from DUI conviction Certificate of No Record Diaz applicable
Citation                 Discussion

                        "We recently held that CNRs are testimonial. Tabaka v. United States, 976 A.2d 173, 175 (D.C. 2009) (holding that in light of Melendez-
                        Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), CNRs are 'inadmissible over objection without corresponding
                        testimony [from the official] who had performed the search'). Accordingly, they are subject to the strictures of the Sixth Amendment.
Little v. United States Therefore the admission of the CNRs into evidence constituted error in light of Melendez-Diaz. 12 129 S. Ct. at 2542;Tabaka, supra,
(2010) 2010 D.C. App. 976 A.2d at 175-76. . . . for appellant to obtain relief upon plain error review, he must show that any error in the admission of the CNRs
LEXIS 82                was plain at the time of his trial in 2005. That he cannot do. For the foregoing reasons, appellant's convictions are affirmed." (24-25.)

                        "We review appellants' direct-appeal claim only for plain error. We can assume without deciding that Dr. Garceau's autopsy notes,
Mungo v. United States which were admitted as substantive evidence without any limiting instruction, were testimonial and that the error in admitting them
(2010) 2010 D.C. App. without Dr. Garceau's live testimony is (now) plain. (footnote citing 2006 case that says autopsy reports are not testimonial.) That
LEXIS 26                assumption is unavailing to appellants, however, because they cannot satisfy the remaining prongs of the plain-error test." (22.)
                        "We recently held that admission of a CNR without producing the witness who prepared it violates a defendant's Sixth Amendment right
                        to confrontation. Tabaka v. United States, 976 A.2d 173, 175-76 (D.C. 2009) (holding that in light of Melendez-Diaz v. Massachusetts,
                        CNRs are 'inadmissible over objection without corresponding testimony [from the official] who had performed the search'). Tabaka
                        explicitly overruled our prior holding in Millard v. United States, 967 A.2d 155, 162 (D.C. 2009) that A[Certificates of No Record] are not
Mitchell v. United      'testimonial' for purposes of the Sixth Amendment Confrontation Clause'. Id. However, as appellants did not raise a Confrontation
States (2009) 985 A.2d Clause challenge to the introduction of the CNRs at trial or on appeal, we decline to address the Confrontation Clause issue in this
1125                    opinion." (1134, fn. 8.)
                        "In light of this disposition, it is unnecessary for us to reach Boyd's additional arguments that his convictions fail for lack of proof that he
                        constructively possessed the pistol and that the government's reliance solely on a certificate-of-no-record to prove lack of a license and
Walker v. United        registration violated the Sixth Amendment Confrontation Clause. See Tabaka v. District of Columbia, 976 A.2d 173, 2009 D.C. App.
States (2009) 982 A.2d LEXIS 255 (D.C. 2009) (per curiam) (holding, on the basis of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314
723                     (2009), that a certificate of no-record is "testimonial")." (738, fn. 26.)
                        "The government correctly concedes that the trial court erred by admitting the DEA chemist's lab reports without the testimony of the
                        DEA chemist. As we have recognized in our prior decisions, including Duvall v. United States, 975 A.2d 839, 2009 D.C. App. LEXIS 256
                        (D.C. 2009), DEA reports which analyze drugs are "testimonial" under Crawford v. Washington. See also Melendez-Diaz v.
Digsby v. United States Massachusetts, concluding that forensic affidavits or the results of forensic analysis are testimonial and that '[t]he Sixth Amendment
(2009) 981 A.2d 598     does not permit the prosecution to prove its case via ex parte out-of-court affidavits.'" (604.)
                        "[Summary of Melendez-Diaz] The Supreme Court's analysis conclusively shows that the CNR in this case, 'a clerk's certificate attesting
                        to the fact that the clerk had searched for a particular relevant record and failed to find it,' id., was inadmissible over objection without
                        corresponding testimony by the DMV official who had performed the search. The contrary conclusion reached by a division of this court
                        in an analogous setting, see Millard v. United States, 967 A.2d 155, 163 (D.C. 2009) (CNRs attesting to no record of license to carry a
                        pistol or registration of firearm not "testimonial"), cannot survive the holding and analysis of Melendez-Diaz. See, e.g., District of
                        Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 179 (D.C. 2008); Kleinbart v. United States, 604 A.2d 861, 870 (D.C. 1992). And,
Tabaka v. State (2009) because the CNR was the sole and sufficient proof of appellant's non-licensure to operate a motor vehicle, his conviction for that
976 A. 2d 173           offense cannot stand." (175-176.)
Citation                 Court             Date           Published?   Summary                      Evidence              Status of Case




Duvall v. United States D.C. Court of                                  Appeal from drug                                   conviction reversed; Melendez-
(2009) 975 A.2d 839     Appeals            Jul. 16, 2009 Y             conviction                   drug certificate      Diaz applicable




Smith v. State (2009)    Florida Supreme   Dec. 17,                    Appeal from murder, rape,                          conviction affirmed; Melendez-
2009 Fla. LEXIS 2067     Court             2009           Y            and kidnapping convictions DNA report              Diaz not applicable




                                                                       Appeal from conviction for
                                                                       acting as an unlicensed                            conviction affirmed; Melendez-
Washington v. State   Florida District                                 contractor during a state of Certificate of Non-   Diaz applicable but error is
(2009) 18 So. 3d 1221 Court of Appeals     Oct. 7, 2009 Y              emergency                    Licensure             harmless




                                                                                                                          Conviction affirmed; any error
                                                                                                                          is harmless. US Supreme
                                                                                                                          Court certiorari denied by
                                                                                                                          Rector v. Georgia, 2009 U.S.
Rector v. State (2009)   Georgia Supreme                               Appeal from capital murder                         LEXIS 8907 (U.S., Dec. 7,
285 Ga. 714              Court             Jul. 9, 2009   Y            conviction                 toxicology report       2009)
Citation                 Discussion

                        "After the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), this court concluded that a DEA drug-analysis
                        report is 'testimonial' evidence, and that 'admission of the report into evidence without the presence of the chemist who prepared it
                        violates the defendant's constitutional right to confrontation unless the defendant validly waives the chemist's presence at trial.'
                        (Citations.) Recently, the Supreme Court agreed, holding that forensic analyst certificates are indeed testimonial under Crawford.
                        Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (U.S. 2009). Duvall argues, and the government concedes, that admitting the DEA-7
Duvall v. United States in the present case without the in-court testimony of the preparing chemist violated Duvall's rights under the Confrontation Clause of the
(2009) 975 A.2d 839     Sixth Amendment. " (842-843.) Error was not harmless beyond a reasonable doubt.
                        "even though the FBI team supervisor did not actually perform the testing to extract DNA samples from the shirt and from Smith, her
                        testimony did not implicate the Confrontation Clause because she, as supervisor, formulated her own conclusions from the raw data
                        produced by the biologists under her supervision and control on her team, and she was subject to cross-examination with regard to
                        those conclusions. [FN 12: he recent decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527
                        (2009), does not impact our holding today. In fact, the Supreme Court concluded that our decision in Johnson with regard to the
                        Confrontation Clause was consistent with its holding in Melendez-Diaz. See id. at 2540 n.11. In Melendez-Diaz, the analysts who
                        conducted the tests that led to the conclusion that the defendant possessed cocaine did not testify during trial--instead, only affidavits
                        which reported the results of the testing were introduced. We conclude that the present case is distinguishable from and not controlled
Smith v. State (2009) by Melendez-Diaz because, as previously noted, the FBI team supervisor who interpreted the data, formulated the conclusions, and
2009 Fla. LEXIS 2067 prepared the report that implicated Smith in the sexual battery actually testified during trial.] Accordingly, relief on this claim is denied."
                        "we conclude that the 'certificate of non-licensure,' prepared by an employee of the State of Florida Licensing Division, Construction
                        Industry Licensing Board and attesting that a search of its records revealed that no one named Randy L. Washington holds a license to
                        engage in contracting in the State of Florida, is testimonial. Such certificate is accusatory, was introduced to establish an element of the
                        crime, was prepared at the request of law enforcement as part of its investigation in this case, and is evaluative in the sense that it
                        represents not simply the production of an existing record, but an assertion regarding the results of an individual's search of a database
                        or databases. As such, the admission of the document, over the defendant's Crawford objection, was error and a violation of the
                        defendant's Sixth Amendment rights. Our conclusion finds support in the Supreme Court's recent decision in Melendez-Diaz v.
                        Massachusetts, 129 S. Ct. 2527 (2009). . . . While we are plainly not dealing with a certificate or affidavit attesting to whether a
Washington v. State     substance found in the defendant's possession was in fact an illegal drug, we nonetheless find the reasoning of Melendez-Diaz
(2009) 18 So. 3d 1221 persuasive. We thus hold that the trial court abused its discretion in allowing the State to introduce the certificate of non-licensure over
                        "The toxicologist who testified had reviewed the work of the doctor who had originally prepared the report and reached the same
                        conclusion that the victim's blood sample tested negative for cocaine. Accordingly, '[r]ather than being a mere conduit for [the doctor's]
                        findings, [the toxicologist] reviewed the data and testing procedures to determine the accuracy of [the] report. An expert may base [his]
                        opinions on data gathered by others.' (Citations.) Compare Melendez-Diaz v. Massachusetts, 174 L. Ed. 2d 314 (2009) (admission into
                        evidence of testimonial affidavits of state laboratory analysts to prove material seized by police was cocaine violated defendant's Sixth
                        Amendment right to confront the witnesses against him where analysts did not testify in person); Miller v. State, 266 Ga. 850 (7) (472
                        SE2d 74) (1996) (where forensic chemist did not testify, admission into evidence of mere affidavit that reported the results of a drug
                        analysis violated defendant's constitutional right to confront the witnesses against him). In any event, even if the trial court erred in
Rector v. State (2009) admitting the evidence here because it violated Rector's right to confront the doctor who prepared the report, such error was harmless
285 Ga. 714             because there is no reasonable probability that it contributed to the verdict." (715-716.)
Citation                Court              Date        Published?   Summary               Evidence                 Status of Case




Carolina v. State
(2010) 2010 Ga. App.    Georgia Court of   Jan. 13,                 Appeal from drug      testimony regarding drug conviction affirmed; Melendez-
LEXIS 24                Appeals            2010        Y            convictions           certificate              Diaz not applicable




Haywood v. State                                                                                                   conviction affirmed; Melendez-
(2009) 2009 Ga. App.    Georgia Court of   Dec. 16,                 Appeal from drug      testimony regarding drug Diaz waived and not
LEXIS 1431              Appeals            2009        Y            convictions           certificate              applicable




State v. Fitzwater                                                                                                 conviction reversed under
(2010) 2010 Haw.        Hawaii Supreme                              Appeal from traffic   spedometer accuracy      evidence rules; Melendez-
LEXIS 47                Court              Mar. 3, 2010 Y           convictions           report                   Diaz not applicable




                                                                                                                    Melendez-Diaz not applicable;
                                                                                                                    Rehearing denied by People
People v. Lovejoy       Illinois Supreme   Sept. 24,                Appeal from murder    toxicology report (as     v. Lovejoy, 2009 Ill. LEXIS
(2009) 235 Ill. 2d 97   Court              2009        Y            conviction            basis for expert opinion) 1945 (Ill., Nov. 23, 2009)
Citation                Discussion
                        " First, we note that our precedent is in accord with the holding in Melendez-Diaz because our state Supreme Court has previously
                        declared a statutory procedure similar to that at issue in Melendez-Diaz unconstitutional and in violation of an accused's confrontation
                        rights. Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996) (admission into evidence of affidavit that reported the results of drug analysis
                        in lieu of the testimony of state crime lab worker violated defendant's right to confront the witnesses against him). And Melendez-Diaz
                        specifically did not decide the issue presented here-whether the technician or chemist who actually performed the tests must testify at
                        trial. Indeed, in a footnote that Court noted '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
Carolina v. State       prosecution's case.' Melendez-Diaz. In our view, a critical distinction here, and one also present and noted by the majority in Dunn, is
(2010) 2010 Ga. App.    that the report or data prepared by the non-testifying technician was not admitted into evidence and the expert who made the
LEXIS 24                determination that the substance was contraband based on her interpretation of the data did testify at trial and was thus subject to cross-
                        "Haywood further contends that the state's failure to call the lab technician to testify violated his Sixth Amendment right to confrontation
                        under Crawford v. Washington, 541 U.S. 36. He procedurally waived his contention, however, by failing to object on this ground at trial.
                        See Melendez-Diaz v. Massachusetts; (Citations). In any event, Haywood's contention is controlled directly and adversely to him by
                        several recent cases, including Rector v. State, 681 Ga. at *4-5; Bradberry v. State, 297 Ga. App. 679, *6-8 (2) (678 SE2d 131) (2009);
                        and Dunn, 292 Ga. App. at 669-672 (1). Indeed, in Reddick v. State, 298 Ga. App. 155, *5-7 (2) (679 SE2d 380) (2009), the same
Haywood v. State        forensic chemist gave similar expert testimony predicated on data gathered by the same lab technician involved in this case, and we
(2009) 2009 Ga. App.    likewise rejected the defendant's contention that his right to confrontation was violated. As such, the drug identification testimony in the
LEXIS 1431              instant case did not run afoul of the Sixth Amendment. (13-14.)
                        "Although Ah Yat testified that speed check cards were created with the understanding that they would be used in prosecuting speeding
                        cases, the card at issue here was created in a non-adversarial setting about five months prior to the alleged speeding incident, and was
                        not created for the specific purpose of prosecuting Fitzwater. Thus, the circumstances of its creation did not preclude its admission as a
                        business record under HRE Rule 803(b)(6). Melendez-Diaz is consistent with this analysis. . . . Citing Palmer, the Court noted that
                        '[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status . . . [b]ut that is not the
                        case if the regularly conducted business activity is the production of evidence for use at trial.' Id. at 2538. . . . Thus, the circumstances in
State v. Fitzwater      Melendez-Diaz were different from those here, where the document was not created specifically for the prosecution of Fitzwater. We
(2010) 2010 Haw.        therefore conclude that a speed check card can be properly admitted into evidence as a business record if the proper foundation is laid."
LEXIS 47                (27-29.)

                        "defendant asserts that admitting the toxicology evidence in this case was erroneous because section 115-5.1 of the Code of Criminal
                        Procedure of 1963 (725 ILCS 5/115-5.1 (West 2002)), which governs the admission of coroner's records as prima facie evidence under
                        a business records exception to the hearsay rule, is unconstitutional under the sixth amendment's confrontation clause. . . . [D]efendant
                        asks us to consider the briefs and argument in Melendez-Diaz v. Massachusetts, [which] has since been decided by the Supreme Court.
                        See Melendez-Diaz. We decline consideration of defendant's arguments in this regard because the toxicology evidence in question was
People v. Lovejoy       not admitted as prima facie evidence and was not admitted as a business record. As previously explained, the evidence was admitted to
(2009) 235 Ill. 2d 97   show the jury the steps Dr. Harkey took to reach an opinion in this case." (146.)
Citation                 Court               Date        Published?   Summary                     Evidence            Status of Case




People v. Johnson
(2009) 394 Ill. App. 3d Illinois Appellate   Sept. 18,                Appeal from sexual assault                      conviction affirmed; Melendez-
1027                    Court                2009        Y            and kidnapping convictions DNA report           Diaz not applicable




Pendergrass v. State Indiana Supreme         Sept. 24,                Appeal from child molesting                     conviction affirmed; Melendez-
(2009) 913 N.E.2d 703 Court                  2009        Y            convictions                 DNA report          Diaz not applicable




Flagg v. State (2009)
2009 Ind. App. Unpub. Indiana Court of       Dec. 18,                 Appeal from murder                              conviction affirmed; any error
LEXIS 2032            Appeals                2009        N            convictions                 autopsy report      is harmless




Meyer v. State (2009)                                                 Appeal from revocation of                       judgment affirmed; Melendez-
2009 Ind. App. Unpub. Indiana Court of       Nov. 10,                 probation from defendant                        Diaz not applicable in
LEXIS 1849            Appeals                2009        N            convicted of drug charges   urinalysis report   probation revocation hearings
Citation                Discussion
                        "Significantly, the decision in Melendez-Diaz did not reach the question of whether the analyst who conducted the scientific tests must
                        testify at a defendant's trial, which is the issue raised by defendant in the instant case. In contrast with certificates presented at trial in
                        Melendez-Diaz, Word and Schoon each testified in person as to their opinions based on the DNA testing and were subject to cross-
                        examination. In Larkin v. Yates, 2009 U.S. Dist. LEXIS 60106 (C.D. Cal. July 9, 2009), a district judge in the United States District Court,
                        Central District of California, reached the same conclusion under similar facts. . . . The California Second District Court of Appeal in
                        People v. Rutterschmidt, 176 Cal. App. 4th 1047 (2009) . . . found that the challenged testimony did not fall within the holding of
                        Melendez-Diaz. There, the toxicological findings were offered by live testimony, not by an affidavit, and the lab supervisor 'testified as a
People v. Johnson       qualified expert, subject to cross-examination, that his review of data obtained under his supervision supported his conclusion as to the
(2009) 394 Ill. App. 3d presence of alcohol and drugs in biological samples taken from [the decedent's] body.' Rutterschmidt, 176 Cal. App. 4th at 1075. The
1027                    court found that Melendez-Diaz did not reach the question of whether this type of testimony violates Crawford. Rutterschmidt, 176 Cal.
                        "[W[e take Melendez-Diaz as another clarifying step, in the vein of Davis, in defining the boundaries of the term 'testimonial.' Following
                        Melendez-Diaz we will therefore treat the Certificate of Analysis in the present case as testimonial, as it fits the definition of testimony as
                        clarified by Melendez-Diaz. It is not clear whether more than one analyst signed each certificate in Melendez-Diaz or three different
                        analysts signed each one. We similarly do not know whether the majority insisted that all the analysts involved in the testing should have
                        testified at trial or if fewer than all of them would be permissible. . . . The court gave some clue on such matters from the majority's
                        declaration that its conclusion 'does not mean that everyone who laid hands on the evidence must be called,' and that the Confrontation
                        Clause leaves discretion with the prosecution on which evidence to present. Melendez-Diaz. That is precisely what the prosecution did
                        in the case before us. It chose to call the laboratory supervisor rather than the laboratory processor. The laboratory supervisor who took
                        the stand did have a direct part in the process by personally checking Powers's test results. (Citation.) As such, she could testify as to
Pendergrass v. State the accuracy of the tests as well as standard operating procedure of the laboratory and whether Powers diverged from these
(2009) 913 N.E.2d 703 procedures. The prosecution further chose to call an expert to interpret the test results for the jury. Thus, Pendergrass had the

                      "Dr. Utz, the forensic pathologist who performed Graves's autopsy, retired sometime after he conducted the autopsy and before the trial.
                      Dr. Harshbarger, another forensic pathologist, testified for the State regarding the autopsy. Flagg argues that the admission of an
                      autopsy report without the accompanying testimony of the doctor, Dr. Utz violated his Sixth Amendment right to confrontation. See
                      Crawford; see also Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2537, 174 L. Ed. 2d 314 (2009) ("Like expert witnesses
Flagg v. State (2009) generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination."). Again, however,
2009 Ind. App. Unpub. because Flagg did not object to the admission of this report, he argues fundamental error. Even if Dr. Utz's failure to testify implicated
LEXIS 2032            Flagg's Sixth Amendment confrontation right, we cannot conclude that Dr. Utz's lack of testimony resulted in fundamental error." (8-9.)

                      "Meyer argues that Retz's affidavit was not substantially trustworthy because Retz did not personally test the urine sample and thus
                      could not review someone else's test. Additionally, he contends that if the affidavit is substantially untrustworthy, then its admission
                      violates Meyer's right to confront witnesses. (FN 1: To the extent that Meyer relies on Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527
Meyer v. State (2009) (2009), this case is inapposite. See Reyes, 868 N.E.2d 438, 440 n.1, stating 'Because probation revocation hearings are not criminal
2009 Ind. App. Unpub. trials, the United States Supreme Court's decision on the Sixth Amendment right to confrontation in criminal trials, Crawford v.
LEXIS 1849            Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed. 2d 177, (2004), is not implicated.' (Citations.)." (7 and fn. 1.)
Citation               Court              Date         Published?   Summary                     Evidence                  Status of Case




                                                                                                                          Judgment affirmed; Melendez-
                                                                                                                          Diaz applies but error is
                                                                                                                          harmless. Rehearing denied
                                                                                                                          by Koenig v. State, 2010 Ind.
Koenig v. State (2009) Indiana Court of   Oct. 30,                  Appeal from drug                                      App. LEXIS 46 (Ind. Ct. App.,
916 N.E.2d 200         Appeals            2009         Y            convictions                 lab report                Jan. 15, 2010)




Iuli v. State (2009)                                                                                                      judgment affirmed; chain of
2009 Ind. App. Unpub. Indiana Court of                              Appeal from drug            chain of custody for      custody evidence is adequate
LEXIS 1397            Appeals             Jul. 21, 2009 N           convictions                 drugs                     under Melendez-Diaz.




                                                                                               DNA report (population
State v. Appleby (2009) Kansas Supreme    Nov. 20,                  Appeal from capital murder statistics as they relate to judgment affirmed; Melendez-
221 P.3d 525            Court             2009         Y            conviction                 DNA testing)                 Diaz not applicable


                                                                                                                          Supreme court affirms
                                                                                                                          appellate court's reversal of
                                                                                                                          defendant's convictions.
                                                                                                                          Melendez-Diaz applies,
                                                                                                                          portion of statute is
State v. Latumer       Kansas Supreme                               Appeal from drug                                      unconstitutional, offending
(2009) 289 Kan. 727    Court              Oct. 9, 2009 Y            convictions                 drug certificate          language is severed.
Citation                Discussion
                        "The lab test showing there was methadone in Harbin's blood should not have been admitted. In Melendez-Diaz v. Massachusetts, 129
                        S.Ct. 2527, 2531 (2009), the Supreme Court held a lab report prepared for use in a criminal prosecution is an affidavit that falls within
                        the 'core class' of testimonial statements covered by the Confrontation Clause. Therefore, a defendant's Sixth Amendment right is
                        violated when the defendant is not allowed to confront the person who created the lab report used at his trial. Id. In Jackson v. State,
                        891 N.E.2d 657, 661 (Ind. Ct. App. 2008), we had already reached the same result the Supreme Court reached in Melendez-Diaz: we
                        held a certificate of analysis used to prove an element of charged crime was a testimonial statement, so its admission into evidence
                        without the testimony of the lab technician who prepared it violated the Sixth Amendment right to confront witnesses." (201-202.) "While
                        the lab report should not have been admitted and Koenig preserved that allegation of error with his trial objection on hearsay and
Koenig v. State (2009) foundation grounds, the error was harmless because there was sufficient evidence to support his conviction even without the lab report."
916 N.E.2d 200          (203-204.)
                        "is well established in Indiana that an exhibit is admissible if the evidence regarding its chain of custody strongly suggests the exact
                        whereabouts of the evidence at all times. (Citation.) . . . Moreover, the United States Supreme Court recently stated:
                        '[W]e do not hold . . . 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. While the dissent is correct that '[i]t is the
                        obligation of the prosecution to establish the chain of custody' . . . this does not mean that everyone who laid hands on the evidence
                        must be called. As stated in . . . United States v. Lott, 'gaps in the chain [of custody] normally go to the weight of the evidence rather
Iuli v. State (2009)    than its admissibility.' It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but
2009 Ind. App. Unpub. what testimony is introduced must (if the defendant objects) be introduced live.' Melendez-Diaz." (4-5.) Here, the chain of custody
LEXIS 1397              evidence was adequate and any error was harmless.
                        "Nevertheless, Melendez-Diaz does not answer the question of whether there was a Confrontation Clause violation in this case. Here,
                        unlike in Melendez-Diaz, the laboratory analysts who performed the DNA testing were in court and subject to cross-examination. The
                        hearsay at issue is the data that was relied on by laboratory analyst Soderholm in reaching her opinion regarding population frequency
                        of specific DNA profiles. . . . Nevertheless, applying the tests utilized in Melendez-Diaz, we conclude the population frequency data and
                        the statistical programs used to make that data meaningful are nontestimonial. We first note that DNA itself is physical evidence and is
                        nontestimonial. (Citations.) Placing this physical evidence in a database with other physical evidence--i.e., other DNA profiles--does not
                        convert the nature of the evidence, even if the purpose of pooling the profiles is to allow comparisons that identify criminals. (Citation.)
                        The database is comprised of physical, nontestimonial evidence. Further, the acts of writing computer programs that allow a
State v. Appleby (2009) comparison of samples of physical evidence or that calculate probabilities of a particular sample occurring in a defined population are
221 P.3d 525            nontestimonial actions. In other words, neither the database nor the statistical program are functionally identical to live, in-court
                        "we conclude that the KBI laboratory analyst's use of the language required by K.S.A. 53-601 and the form prescribed by K.S.A. 22-
                        3437 along with the certificate's reference to those two statutes indicates the certificate was intended to be and was 'functionally
                        identical to live, in-court testimony, doing 'precisely what a witness does on direct examination' and was 'made under circumstances
                        which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' Melendez-
                        Diaz, 174 L. Ed. 2d at 321. As such, the KBI laboratory analyst's certificate was testimonial, giving rise to Laturner's rights under the
                        Confrontation Clause. Consequently, absent a showing that the KBI analyst was unavailable to testify at trial and that Laturner had a
                        prior opportunity to cross-examine the analyst, Laturner was entitled to be confronted with the analyst at trial unless that right was
State v. Latumer        waived. See Melendez-Diaz, 174 L. Ed. 2d at 322." (734-735.) There also follows a discussion of Melendez-Diaz's analysis of notice-and-
(2009) 289 Kan. 727     demand statutes.
Citation              Court              Date        Published?   Summary                      Evidence                   Status of Case

                                                                  Appeal by the government
                                                                  after the district court
                                                                  dismissed charges after the
                                                                  district court determined
                                                                  that Kan. Stat. Ann. § 22-
                                                                  2902a, which authorized
                                                                  the admission of forensic
                                                                  laboratory reports at                                   Dismissal reversed; Melendez-
State v. Leshay (2009) Kansas Supreme    Aug. 28,                 preliminary hearings, was                               Diaz not applicable to
289 Kan. 546           Court             2009        Y            unconstitutional            drug certificate            preliminary hearings.

State v. Belone (2010)                                                                         out of court statements
2010 Kan. App. Unpub. Kansas Court of                             Appeal from murder and       by complaining witness,    conviction affirmed; any error
LEXIS 176              Appeals           Jan. 8, 2010 N           kidnapping convictions       including tape recording   is harmless




                                                                                                                          Conviction affirmed; Melendez-
State v. Murphy (2009) Kansas Court of   Nov. 13,                 Appeal from drug                                        Diaz applies but defendant did
219 P.3d 1223          Appeals           2009        Y            convictions                  drug certificate           not object in timely manner


State v. Chatmon
(2009) Kan. App.      Kansas Court of    Sept. 4,                 Appeal from drug
Unpub. LEXIS 706      Appeals            2009        N            convictions                  n/a                        conviction affirmed



Coleman v.
Commonwealth (2009)                                               Appeal from conviction for
2009Ky. Unpub. LEXIS Kentucky Supreme Oct. 29,                    felon in possession of a     statements made to
128                  Court            2009           N            hangun                       police by witness          conviction reversed
Citation                 Discussion




State v. Leshay (2009) "Based on that decision [Melendez-Diaz], we conclude that the forensic examiner reports referred to in K.S.A. 22-2902a are testimonial
289 Kan. 546           statements." (549.)
                       Analysis done under other confrontation clause cases. Only mention of Melendez-Diaz: "Crawford clarified that a witness' testimony
State v. Belone (2010) against a defendant is inadmissible unless the witness appears at trial or, if the testimonial witness is unavailable to testify at trial, the
2010 Kan. App. Unpub. defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59; see Melendez-Diaz v. Massachusetts U.S. ,
LEXIS 176              174 L. Ed. 2d 314, 320-32, 129 S. Ct. 2527 (2009)."
                       "In Laturner, our Supreme Court examined the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 174 L. Ed.
                       2d 314 (2009) . . . . The Laturner court applied Melendez-Diaz to K.S.A. 22-3437, severing, 'in any case where the right of confrontation
                       arises under the Sixth Amendment to the United States Constitution,' the third and fourth sentences of K.S.A. 22-3437(3), which place
                       an unconstitutional burden on a criminal defendant asserting his or her right to question a witness. 2009 Kan. LEXIS 870, at *52.
                       However, the Laturner court also noted that Melendez-Diaz states the 'simplest form' of 'notice-and-demand statutes,' requiring a
                       defendant to object to the admission of evidence under the statute within a specified time following notice of intent to proffer by the
                       prosecution, is constitutional. Laturner,2009 Kan. LEXIS 870, at *18. Therefore, the Laturner court did not strike the objection, timing,
                       and waiver provisions from K.S.A. 22-3437(3), as they 'mirror the simplest form of a notice-and-demand statute.' 2009 Kan. LEXIS 870,
State v. Murphy (2009) at *26. Thus, under Laturner, the objection, timing, and waiver provisions of K.S.A. 22-3437(3) remain in effect. The defendant here did
219 P.3d 1223          not properly object under these provisions to the admission of the lab report within 10 days of receiving the State's notice of intent to

                     "In our view, the district court's grant of a 19-day continuance in this case was reasonable . . . . The State has a limited number of
State v. Chatmon     chemists, but their appearance at trial in drug-possession cases is a necessity in light of the defendant's constitutional right to confront
(2009) Kan. App.     the witnesses against him. See Melendez-Diaz v. Massachusetts. . . . We see no prejudice to Chatmon from the 19-day delay for the
Unpub. LEXIS 706     State to bring in a witness both critical to its own case and to protecting the defendant's constitutional rights." (5-6.)
                     "The rule from Crawford, as recently restated, is simple: 'A witness's testimony against a defendant is … inadmissible unless the
                     witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.' Melendez-Diaz v.
                     Massachusetts, 129 S.Ct. 2527, 2531 (2009) (citing Crawford, 541 U.S. at 54). Under this rule, the statements admitted against
Coleman v.           Appellant are paradigmatic violations of the Confrontation Clause. First, the witnesses did not testify at trial. Second, there is no
Commonwealth (2009) indication that the witnesses were unavailable . . . . Third, the statements were untested by cross-examination. The only question then is
2009Ky. Unpub. LEXIS whether the statements were testimonial. The statements in this case clearly were. Statements made in response to police questioning
128                  following a crime are testimonial in nature" (10-11.)
Citation               Court                Date        Published?   Summary                   Evidence                 Status of Case




State v. Davidson                                                                                                       conviction affirmed; Melendez-
(2010) 2010 La. App.   Louisiana Court of   Feb. 10,                 Appeal from drug                                   Diaz applicable but error is
LEXIS 170              Appeals              2010        Y            conviction                drug certificate         harmless




Common wealth v.                                                                                                        conviction affirmed; Melendez-
Depina (2010) 2010     Massachusetts        Mar. 10,                 Appeal from firearm                                Diaz applicable but error is
Mass. LEXIS 49         Supreme Court        2010        Y            convictions               ballistics certificate   harmless



Commonwealth v.
Sylvia (2010) 2010     Massachusetts                                 Appeal from murder                                 conviction affirmed; Melendez-
Mass. LEXIS 44         Supreme Court        Mar. 2, 2010 Y           conviction                drug certificate         Diaz not an issue at trial


Commonwealth v.
Muniz (2010) 2010      Massachusetts                                 Appeal from drug and      drug and ballistics      convictions reversed;
Mass. LEXIS 43         Supreme Court        Mar. 2, 2010 Y           firearm convictions       certificates             Melendez-Diaz applies



Commonwealth v.
Semedo (2010) 456      Massachusetts                                 Appeal from murder                                 conviction affirmed; Melendez-
Mass. 1                Supreme Court        Feb. 4, 2010 Y           conviction                autopsy report           Diaz not applicable
Commonwealth v.
Hurley (2009) 455      Massachusetts        Sept. 29,                Appeal from assault and
Mass. 53               Supreme Court        2009        Y            battery conviction        excited utterances       conviction affirmed
Citation               Discussion

                       "Melendez-Diaz, supra, held that states cannot avoid Crawford by designating certain documents as non-accusatory and therefore non-
                       testimonial. In Melendez, defendant had been arrested for possession of cocaine. To establish the fact that the substance seized was
                       cocaine, the State submitted laboratory analysis of the substance. The report confirmed that the substance was cocaine and also stated
                       the weight of the substance seized. The supreme court found that this laboratory report violated Crawford as it was offered as prima
State v. Davidson      facie evidence of the crime, with no showing that the analysts who prepared the reports were unavailable. The records did not fall into
(2010) 2010 La. App.   the regularly kept records exception, since these sorts of documents are prepared for use in court, not in business. However, violations
LEXIS 170              of the confrontation clause are subject to a harmless error analysis. " (14-15.)

                       "While the certificate at issue in the Supreme Court's Melendez-Diaz decision reported the weight of suspected narcotics and declared
                       that the substance tested contained cocaine, id. at 2531, we recognize that the holding of that decision applies equally to the certificate
                       at issue in this case, which certified that the revolver found near the defendant at the time of his arrest was a firearm from which a bullet
Common wealth v.       could be discharged and that the ammunition was designed for use in a firearm. (Footnote.) (Citation.) Because the defendant objected
Depina (2010) 2010     to the admission of the certificate and because its admission over objection constituted constitutional error, we must now determine
Mass. LEXIS 49         whether the erroneous admission of the certificate was "harmless beyond a reasonable doubt." (20-21.)
                       "A certificate of drug analysis . . . is included among the trial exhibits. . . . While the certificate is included among the exhibits, there
                       appears to be no indication in any of the transcripts of when this exhibit was admitted in evidence, and the parties have not provided
                       information concerning the circumstances of its admission, namely, whether it was admitted with or without an objection. Because the
Commonwealth v.        Commonwealth is not required to prove motive, whether the substance found on the victim was, in fact, crack cocaine was not a matter
Sylvia (2010) 2010     that played a role in the Commonwealth's case and does not implicate the principles set forth in Melendez-Diaz v. Massachusetts." (12,
Mass. LEXIS 44         fn. 15.)

                       "When the Melendez-Diaz decision issued, the Court overruled our holding in Verde, stating that drug certificates were the functional
Commonwealth v.        equivalent of an affidavit and therefore testimonial. Melendez-Diaz, supra at 2532. . . . The Commonwealth concedes, as it must, that it
Muniz (2010) 2010      was error to admit the ballistics and drug certificates. Because the defendant objected to the admission of the certificates on
Mass. LEXIS 43         constitutional grounds, we review the errors to determine whether they were harmless beyond a reasonable doubt. (Citation.)" (5.)
                       "In a letter submitted pursuant to Mass. R. A. P. 16 (l) . . . the defendant makes an argument unrelated to any of those raised in his brief
                       or reply brief. He 'objects' to the introduction of testimony of a medical examiner other than the one who performed the autopsy. The
                       defendant claims that such testimony was admitted in violation of Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v.
Commonwealth v.        Massachusetts, 129 S. Ct. 2527 (2009). There was no error. See Commonwealth v. Avila, 454 Mass. 744, 759-766 (2008) (right of
Semedo (2010) 456      confrontation not violated where medical examiner who did not perform autopsy testifies to his own opinion as to cause of death)." (12,
Mass. 1                fn. 14.)
Commonwealth v.
Hurley (2009) 455      citing Melendez-Diaz for the proposition that Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on
Mass. 53               the defendant to bring those adverse witnesses into court. (67, fn. 13.)
Citation              Court              Date        Published?   Summary                  Evidence                 Status of Case




Commonwealth v.                                                                                                     conviction affirmed; Melendez-
Connolly (2009) 454   Massachusetts      Sept. 17,                Appeal from drug                                  Diaz applicable but error is
Mass. 808             Supreme Court      2009        Y            conviction               drug certificate         harmless
Commonwealth v.                                                                                                     review granted on Melendez-
Charles (2009) 454    Massachusetts      Sept. 15,                                                                  Diaz issue, final opinion not
Mass. 1113            Supreme Court      2009        Y            Not available on Lexis   drug certificate         yet published
                                                                                                                    review granted; final opinion at
Commonwealth v.                                                                                                     Commonwealth v. Muniz
Muniz (2009) 454      Massachusetts      Sept. 15,                Appeal from drug and     drug and ballistics      (2010) 2010 Mass. LEXIS 43
Mass. 1113            Supreme Court      2009        Y            firearm convictions      certificates             (see row 175 above.)




Commonwealth v.                                                                                                     conviction affirmed; Melendez-
Avila (2009) 454 Mass. Massachusetts     Sept. 15,                Appeal from murder                                Diaz applies but error is
744                    Supreme Court     2009        Y            conviction               autopsy report           harmless




Commonwealth v.
Alves (2010) 2010
Mass. App. Unpub.     Massachusetts      Mar. 12,                 Appeal from firearm                               conviction reversed; Melendez-
LEXIS 265             Court of Appeals   2010        N            convictions              ballistics certificate   Diaz applies
Citation                Discussion
                        "The United States Supreme Court ruled in Melendez-Diaz that analysts' affidavits are 'testimonial statements' and that '[a]bsent a
                        showing that the analysts were unavailable to testify at trial and that [a defendant] had a prior opportunity to cross examine them,' a
                        defendant has a right to confront the analysts at trial. Id. at 2532. Here, there was no showing that the analysts were unavailable, and
                        the defendant had not previously cross-examined them. Under Melendez-Diaz, admission of the certificates of analysis was error. The
                        defendant did not raise the confrontation issue at trial. Trial in this case was in August, 2006. On May 19, 2005, this court in
                        Commonwealth v. Verde, 444 Mass. 279, 280, 283-284 (2005), held that drug certificates of analysis did not implicate the confrontation
                        clause and were not affected by the decision in Crawford v. Washington, 541 U.S. 36 (2004). The Supreme Court did not grant certiorari
Commonwealth v.         in Melendez-Diaz until March 17, 2008, long after the defendant's trial. Although it is not free of doubt, the 'clairvoyance' exception may
Connolly (2009) 454     apply in these circumstances. (Citations.) Arguably, the defendant could not reasonably have been expected to assert at trial a
Mass. 808               constitutional proposition that we had so recently rejected; it would therefore follow that he could raise the issue now and have us apply
Commonwealth v.
Charles (2009) 454      "Review is limited to issues concerning the admission of the drug certificate in light of the decision in Melendez Diaz vs. Massachusetts.
Mass. 1113              129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). "

Commonwealth v.
Muniz (2009) 454       "Review is limited to the issues concerning the admission of the drug and ballistic certificates in light of the decision in Melendez-Diaz
Mass. 1113             vs. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)."
                       "Expert opinion testimony of this nature does not offend the confrontation clause as interpreted by the Supreme Court of the United
                       States in Crawford v. Washington, 541 U.S. 36 (2004) (. . .) and most recently in Melendez-Diaz v. Massachusetts, 129 S. Ct.
                       2527(2009) (. . .). To repeat, as we held in Nardi, the substitute medical examiner, as an expert witness, is not permitted on direct
                       examination to recite or otherwise testify about the underlying factual findings of the unavailable medical examiner as contained in the
                       autopsy report. 18 Nardi, supra at 394 (deeming statements in autopsy report testimonial hearsay barred by Crawford). The expert
                       witness's testimony must be confined to his or her own opinions and, as to these, the expert is available for cross-examination. In the
                       present case, and in accordance with Nardi, we conclude that the judge correctly permitted Dr. Flomenbaum to offer his opinions
Commonwealth v.        concerning issues related to the autopsy, but erred in allowing Dr. Flomenbaum to testify on direct examination about the findings in Dr.
Avila (2009) 454 Mass. Philip's autopsy report -- both because these findings were inadmissible hearsay and because they violated the confrontation clause. 19
744                    Id. at 391-396. We also conclude, however, that this unpreserved error did not result in a substantial likelihood of a miscarriage of
                       "The defendant argues that it was error for the judge to deny his motion in limine . . . seeking to exclude a ballistics certificate without
                       live testimony from the ballistician. We agree. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009); citation. Because the
                       defendant preserved this claim by raising it as the basis for his motion in limine and then renewing his objection when the certificate was
                       offered in evidence, we may only affirm the defendant's conviction if the error was harmless beyond a reasonable doubt. (Citations.)
                       Although the gun was loaded when Trooper Taccini discovered it, there was no independent evidence of operability. (Citation.) The
                       issue of the operational ability of the firearm was hotly contested and the prosecutor relied on the certificate to prove operability. This
Commonwealth v.        case is therefore controlled by Commonwealth v. Muniz, 456 Mass. 166 (2010), in which the Supreme Judicial Court concluded that the
Alves (2010) 2010      admission of ballistics certificates concerning a firearm that was loaded when seized was not harmless beyond a reasonable doubt
Mass. App. Unpub.      without other independent evidence of operability. (Citations.) We therefore reverse the defendant's convictions and remand for a new
LEXIS 265              trial." (6-8.)
Citation               Court              Date        Published?   Summary                  Evidence                 Status of Case
Commonwealth v.
Robinson (2010) 2010                                                                                                 conviction reversed and
Mass. App. Unpub.      Massachusetts      Mar. 11,                                                                   remanded; Melendez-Diaz
LEXIS 268              Court of Appeals   2010        N            Not available on Lexis   Not available on Lexis   applies
Commonwealth v.
Hidalgo (2010) 2010                                                                                                  conviction reversed and
Mass. App. Unpub.      Massachusetts      Mar. 11,                 Appeal from firearm                               remanded; Melendez-Diaz
LEXIS 266              Court of Appeals   2010        N            convictions              Not available on Lexis   applies




Commonwealth v.
Benton (2010) 2010
Mass. App. Unpub.      Massachusetts                               Appeal from drug                                  convictions reversed;
LEXIS 238              Court of Appeals   Mar. 9, 2010 N           convictions              drug certificates        Melendez-Diaz applies




Commonwealth v.
Woodworth (2010)
Mass. App. Unpub.      Massachusetts                               Appeal from drug                                  convictions reversed;
LEXIS 218              Court of Appeals   Mar. 5, 2010 N           convictions              drug certificates        Melendez-Diaz applies



Commonwealth v.
Pellot (2010) 2010
Mass. App. Unpub.      Massachusetts                               Appeal from drug                                  convictions reversed;
LEXIS 216              Court of Appeals   Mar. 5, 2010 N           convictions              drug certificates        Melendez-Diaz applies
Citation               Discussion
Commonwealth v.        "On review of the record, the briefs, and the transcript, nothing has been made to appear that would cause us to conclude that the
Robinson (2010) 2010   circumstances presented here are not controlled by the teachings of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
Mass. App. Unpub.      Accordingly, we are constrained to reverse the defendant's convictions and remand this matter to the District Court for such
LEXIS 268              proceedings as the Commonwealth deems appropriate."
Commonwealth v.        "On review of the record, the briefs, and the transcript, nothing has been made to appear that would cause us to conclude that the
Hidalgo (2010) 2010    circumstances presented here are not controlled by the teachings of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
Mass. App. Unpub.      Accordingly, we are constrained to reverse the defendant's convictions related to possession of a firearm and remand those counts to
LEXIS 266              the District Court for such proceedings as the Commonwealth deems appropriate."

                       "The Commonwealth agrees that the admission of the two drug certificates in this case was constitutional error under the Sixth
                       Amendment to the Federal Constitution. The parties dispute whether the confrontation clause objection was properly preserved below.
                       We need not decide that issue because even under the substantial risk of a miscarriage of justice standard that is more favorable to the
Commonwealth v.        Commonwealth, the convictions must be reversed under Melendez-Diaz and the Commonwealth given an opportunity, if it so chooses,
Benton (2010) 2010     to retry the defendant. In this case, the strongest evidence that the substance involved was cocaine was the drug certificates. The
Mass. App. Unpub.      certificates were the only evidence referred to by the prosecutor in closing when discussing proof of the element that the substance was
LEXIS 238              cocaine. . . . we cannot say in these circumstances that the certificates did not "materially influence" the jury." (1-2.)
                       "In the instant case, the court erroneously admitted such certificates. The defendant did not object at trial but argues on appeal that the
                       'clairvoyance exception' applies so that we should review his claim under the preserved error standard. (Citation.) We need not resolve
                       this question because we conclude that the erroneously admitted evidence presents a substantial risk of a miscarriage of justice.
                       (Citations.) . . . Here, without the certificates, the government proffered independently insufficient circumstantial evidence relating to the
                       nature of the seized substances, which was an essential element of the crime. Though the troopers seized paraphernalia, such as razor
                       blades and baking soda, and testified that the seized substances were 'narcotics,' or 'drugs,' consisting of 'white powder' and 'white
Commonwealth v.        rock,' other than these statements, they did not testify to any other training or experience on which they based these assertions, and the
Woodworth (2010)       judge did not make the necessary finding that the troopers' experience permitted them to offer an opinion that the substance was
Mass. App. Unpub.      cocaine. (Citation.) As such, the certificates likely had a material impact on the jury's verdict. Because the drug analysis certificates were
LEXIS 218              erroneously admitted in evidence and posed a substantial risk of a miscarriage of justice, we reverse the judgment," (6-8.)
                       "In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the United States Supreme Court held that the admission of drug analysis
                       certificates, without live testimony, violates a defendant's confrontation rights under the Sixth Amendment to the United States
                       Constitution. Accordingly, the admission of the certificates in this case was error. Although the defendant, did not object to their
Commonwealth v.        admission at trial, it is unnecessary for us to determine the applicable standard of review. (Citations.) The error here presented a
Pellot (2010) 2010     substantial risk of a miscarriage of justice. . . . With the offending evidence excised, we have strong doubts concerning the jury's verdict.
Mass. App. Unpub.      While the certificates were cumulative as to the underlying trafficking enterprise, they were essential to the Commonwealth's joint
LEXIS 216              venture theory against the defendant." (2-3.)
Citation             Court              Date        Published?   Summary               Evidence                 Status of Case




Commonwealth v.
Perez (2010) 2010    Massachusetts                               Appeal from drug                               convictions reversed;
Mass. App. LEXIS 250 Court of Appeals   Mar. 5, 2010 Y           convictions           drug certificates        Melendez-Diaz applies




Commonwealth v.
Whitehead (2010)
2010 Mass. App.      Massachusetts                               Appeal from drug                               convictions reversed;
Unpub. LEXIS 200     Court of Appeals   Mar. 3, 2010 N           convictions           drug certificates        Melendez-Diaz applies




Commonwealth v.
Farmer (2010) 2010
Mass. App. Unpub.    Massachusetts      Feb. 25,                 Appeal from firearm                            convictions reversed;
LEXIS 176            Court of Appeals   2010        N            convictions           ballistics certificate   Melendez-Diaz applies




Commonwealth v.
Rivera (2010) 2010   Massachusetts      Feb. 23,                 Appeal from firearm                            convictions reversed;
Mass. App. LEXIS 201 Court of Appeals   2010        Y            convictions           ballistics certificate   Melendez-Diaz applies
Citation             Discussion
                     "The defendant states in a single paragraph in his brief that, although he made no objection, the introduction of three drug analysis
                     certificates in his July, 2004, trial violated his confrontation rights as set forth in Crawford v. Washington, 541 U.S. 36 (2004). The
                     defendant notes that, during the pendency of his appeal, the United States Supreme Court granted certiorari in Commonwealth v.
                     Melendez-Diaz, 69 Mass. App. Ct. 1114 (2007), . . . . Subsequently, the Supreme Court ruled that '[t]he Sixth Amendment does not
                     permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz
                     was error.' Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009) (Footnote.) . . . The Commonwealth asks that we conduct
                     our review under the substantial risk of a miscarriage of justice standard because the defendant did not object to the admission of the
Commonwealth v.      drug analysis certificates at trial. It is not necessary to determine whether the posture of this case requires that we review under the
Perez (2010) 2010    higher standard of harmless beyond a reasonable doubt because we conclude, for the reasons which follow, that the defendant is
Mass. App. LEXIS 250 entitled to relief under either standard." (6-7.)

                     "We agree that the Melendez-Diaz case requires reversal of the defendant's convictions. . . . Other than the [policemen's] testimony,
                     there was no circumstantial evidence that the substances involved were cocaine and marijuana, and there was nothing to indicate the
                     quantity of cocaine. There was no expert opinion offered, and there were no field tests. Contrast Commonwealth v. Connolly, 454 Mass.
Commonwealth v.      808, 831, 913 N.E.2d 356 (2009). [Footnote.] Although the defendant did not specifically mention the confrontation clause, he objected
Whitehead (2010)     to the introduction of the certificates. We consider the error preserved, and hence review the error to determine whether it was harmless
2010 Mass. App.      beyond a reasonable doubt. There is no question that here 'there is a reasonable possibility that the evidence complained of might have
Unpub. LEXIS 200     contributed to the conviction[s].' (Citations.)" (2-3.)
                     "Both the Commonwealth and the defendant agree that the admission of the ballistics certificate violated the defendant's confrontation
                     rights under the Sixth Amendment. The Commonwealth, however, argues that the erroneous, unobjected-to admission of the ballistics
                     certificate did not create a substantial risk of a miscarriage of justice requiring reversal of his conviction. The defendant, in a
                     postargument filing, argues that in light of Commonwealth v. Verde, 444 Mass. 279, 283 (2005), which was the controlling law at the
                     time of trial, the 'clairvoyance' exception applies, i.e., his attorney should not have been expected to object to introduction of the
                     ballistics certificate and that our review is to be conducted under the harmless beyond a reasonable doubt standard. It is unnecessary to
Commonwealth v.      decide which standard of review is applicable because there was reversible error under either standard. (Citation.) Here, the ballistics
Farmer (2010) 2010   certificate, like drug certificates of analysis, constituted a 'testimonial statement[]' under the confrontation clause and the defendant had
Mass. App. Unpub.    a right to confront the analysts at trial '[a]bsent a showing that the analysts were unavailable to testify at trial and that [a defendant] had a
LEXIS 176            prior opportunity to cross examine them . . . .' (Citation.) Here, the author of the ballistics certificate did not testify, there was no showing
                     "Prior to oral argument the defendant submitted a supplemental memorandum addressing the effect of Melendez-Diaz v.
                     Massachusetts, arguing that a ballistics certificate, just as a drug analysis certificate, violates a defendant's right of confrontation if
                     introduced without the testimony of the ballistics expert, or an opportunity to cross-examine the expert and urging that our review be
                     conducted under the harmless beyond a reasonable doubt standard. . . . It is unnecessary to decide which standard of review is to be
                     applied in this case because we conclude that there was reversible error under either standard. (Citation.) (Footnote) . . . The evidence
                     submitted by the Commonwealth in this case begins and ends with the testimony of the trooper who seized the gun and found that it
                     was loaded. Relying on the ballistics certificate, he stated that the gun had been test fired and was functioning properly. . . . Other than
                     his observation that the gun was loaded when he seized it, the trooper offered no other observations or any opinions or evidence as to
Commonwealth v.      whether the gun was a working firearm. The admission of the gun in evidence does not eliminate the problems raised by the erroneous
Rivera (2010) 2010   admission of the certificate. . . .
Mass. App. LEXIS 201 Finally, there is no merit in the Commonwealth's assertion that it is significant the defendant never argued that the gun and ammunition
Citation               Court              Date       Published?   Summary               Evidence                 Status of Case

Commonwealth v.
Greco (2010) 2010    Massachusetts        Feb. 22,                Appeal from drug                               convictions affirmed;
Mass. App. LEXIS 190 Court of Appeals     2010       Y            convictions           drug certificate         Melendez-Diaz not applicable




                                                                                                                 Convictions reversed;
                                                                                                                 Melendez-Diaz applies.
Commonwealth v.                                                                                                  Reported at Commonwealth v.
Kirkland (2010) 2010                                                                                             Kirkland, 2010 Mass. App.
Mass. App. Unpub.      Massachusetts      Feb. 19,                Appeal from drug                               LEXIS 184 (Mass. App. Ct.,
LEXIS 150              Court of Appeals   2010       N            convictions           drug certificate         Feb. 19, 2010)



Commonwealth v.
Dacruz (2010) 2010
Mass. App. Unpub.      Massachusetts      Feb. 12,                Appeal from firearm                            convictions reversed;
LEXIS 129              Court of Appeals   2010       N            convictions           ballistics certificate   Melendez-Diaz applies




Commonwealth v.
Joyner (2010) 2010
Mass. App. Unpub.      Massachusetts      Feb. 10,                Appeal from drug                               convictions reversed;
LEXIS 123              Court of Appeals   2010       N            convictions           drug certificates        Melendez-Diaz applies
Citation                Discussion

Commonwealth v.      "The introduction of the drug certificates was error. See Melendez-Diaz. Although the Commonwealth questions whether the defendant
Greco (2010) 2010    adequately preserved his confrontation claim, we need not resolve the issue of the appropriate standard of review because we conclude
Mass. App. LEXIS 190 that the error was harmless beyond a reasonable doubt. (Citation.)" (3-4.)
                     "Over the defendant's objection (made specifically on Sixth Amendment grounds and citing to Crawford v. Washington, 541 U.S. 36
                     [2004]), the judge erroneously admitted two drug analysis certificates stating that the substance in the baggies seized from the
                     defendant and the bag found in the car was cocaine. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Because the
                     defendant properly preserved the objection, we evaluate the admission of the certificates to determine whether it was harmless beyond
                     a reasonable doubt. (Citation.) Here, there was little or no evidence apart from the certificates concerning the identity of the substances.
                     . . . There is no merit to the Commonwealth's argument that the error in admitting the certificates was harmless because the defendant's
Commonwealth v.      trial strategy (that the cocaine he possessed was more consistent with personal use than with an intent to distribute) did not challenge
Kirkland (2010) 2010 the composition of the substances. The defendant did not adopt this strategy until after his objection to the certificates was overruled. . .
Mass. App. Unpub.    . Nor is there any merit to the Commonwealth's argument that the defendant's stipulation, that the drugs found in his pocket were
LEXIS 150            packaged for sale, was sufficient to establish the identity of the drugs. The Commonwealth's related argument that but for the stipulation

                        "On appeal, the defendant also argues that it was error for the judge to deny his motion in limine seeking to exclude ballistics certificates
                        without live testimony from the ballistician. We agree. Applying the Court's holding from Melendez-Diaz v. Massachusetts, 129 S. Ct.
Commonwealth v.         2527 (2009), the admission of ballistics certificates without live testimony violates a criminal defendant's confrontation rights under the
Dacruz (2010) 2010      Sixth Amendment. As such, the ruling was in error, and the defendant preserved this claim by raising it as the basis for his motion in
Mass. App. Unpub.       limine, and then renewing his objection when the certificates were offered in evidence. Accordingly, we may only affirm the defendant's
LEXIS 129               conviction if this error was harmless beyond a reasonable doubt. (Citations.)" (5.)

                        "After the filing of [defendant's] brief, the United States Supreme Court held that "[t]he Sixth Amendment does not permit the
                        prosecution to prove its case via ex parte out-of-court affidavits." Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009). . . .
                        [T]he Commonwealth must prove every element of a crime beyond a reasonable doubt. (Citation.) Thus the Commonwealth must
                        prove that the substance produced by the defendant was cocaine, if not by chemical analysis, then by circumstantial evidence. . . .
Commonwealth v.         [T]here was no circumstantial evidence that the substance given to Patterson was cocaine. [Footnote] There was no expert opinion, and
Joyner (2010) 2010      there were no field tests. Contrast Commonwealth v. Connolly, 454 Mass. 808, 831, 913 N.E.2d 356 (2009). We review the preserved
Mass. App. Unpub.       error to determine whether it was harmless beyond a reasonable doubt. There is no question that here 'there is a reasonable possibility
LEXIS 123               that the evidence complained of might have contributed to the conviction.'" (4-5.)
Citation               Court              Date        Published?   Summary                  Evidence              Status of Case




Commonwealth v.
Barrett (2010) 2010
Mass. App. Unpub.      Massachusetts                               Appeal from drug                               convictions reversed;
LEXIS 114              Court of Appeals   Feb. 5, 2010 N           convictions              drug certificates     Melendez-Diaz applies
Commonwealth v.
Gonzalez (2010) 2010                                                                                              convictions reversed;
Mass. App. Unpub.      Massachusetts                               Appeal from drug and     drug and ballistics   Melendez-Diaz issue not
LEXIS 112              Court of Appeals   Feb. 5, 2010 N           firearm convictions      certificates          reached

Commonwealth v.
Pimentel (2010) 2010                                               On remand from the US
Mass. App. Unpub.      Massachusetts                               Supreme Court. Appeal                          convictions reversed;
LEXIS 124              Court of Appeals   Feb. 3, 2010 Y           from drug convictions.   drug certificate      Melendez-Diaz applies



Commonwealth v.                                                    reconsideration of the
Melendez-Diaz (2010) Appeals Court of                              Melendez-Diaz drug                             verdicts set aside in light of
76 Mass. App. Ct. 229 Massachusetts       Feb. 3, 2010 Y           conviction               drug certificates     Melendez-Diaz

Commonwealth v.
Williams (2010) 2010                                                                                              conviction affirmed; Melendez-
Mass. App. Unpub.      Massachusetts                               Appeal from drug                               Diaz applicable but error is
LEXIS 106              Court of Appeals   Feb. 3, 2010 N           convictions              drug certificates     harmless
Citation                Discussion

                        "he United States Supreme Court has ruled that a drug analysis certificate constitutes 'testimonial' hearsay evidence under Crawford v.
                        Washington, 541 U.S. 36 (2004). Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). The certificates were thus admitted
                        erroneously in the absence of testimony by the individuals who conducted the tests. See ibid. The certificates were admitted over the
                        objections of the defendant. We therefore review the remaining evidence supporting the determination that the substances found in the
                        apartment were cocaine and marijuana and will reverse unless the error was harmless beyond a reasonable doubt.(Citation.)
Commonwealth v.         (Footnote.) In this case the certificates were a central part of the Commonwealth's evidence. The only other evidence relating to the
Barrett (2010) 2010     composition of either substance was testimony by a trained and experienced police officer that the suspected marijuana was packaged
Mass. App. Unpub.       in a manner consistent with street sales of that drug. Accordingly we conclude that there was a 'reasonable possibility that the evidence
LEXIS 114               complained of might have contributed to the conviction.'" (1-3.)
Commonwealth v.
Gonzalez (2010) 2010 "Given the Supreme Court's decisions in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Morales v.
Mass. App. Unpub.     Massachusetts, 129 S. Ct. 2858, 174 L. Ed. 2d 599 (2009), we expect the government not to violate the defendant's confrontation rights
LEXIS 112             by admitting drug analysis and ballistics certificates without live testimony, assuming it wishes to retry the defendant." (9, fn. 3)
                      "Because the defendant objected to the introduction of the drug analysis certificates at trial and raised the Crawford issue in his direct
Commonwealth v.       appeal while Melendez-Diaz was pending, the admission of the drug analysis certificates without making the analyst available was a
Pimentel (2010) 2010 constitutional error, and we must review the record under a harmless beyond a reasonable doubt standard. (Citations.) That standard
Mass. App. Unpub.     requires that we determine 'whether there is a reasonable possibility that the evidence complained of might have contributed to the
LEXIS 124             conviction.' (Citations.)" (238.)
                      The Supreme Court ruled in Melendez-Diaz v. Massachusetts that "[t]he Sixth Amendment does not permit the prosecution to prove its
                      case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error." . . . We conclude that
                      the certificates were of significant importance in the Commonwealth's case because they were the only evidence of the composition and
Commonwealth v.       weight of the substances, and the other evidence against the defendant was circumstantial and certainly not overwhelming. The
Melendez-Diaz (2010) improperly admitted certificates cannot be said to have played little or no role in the outcome of the case. Consequently, the error in their
76 Mass. App. Ct. 229 admission was not harmless beyond a reasonable doubt.

Commonwealth v.         "The defendant further argues that the judge erred in admitting, over objection, the certificates of drug analysis without testimony from
Williams (2010) 2010    the analyst. We agree. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532, (2009). Such constitutional error warrants
Mass. App. Unpub.       reversal unless the error is harmless beyond a reasonable doubt. (Citation.). . . . Here, the introduction in evidence of the two drug
LEXIS 106               certificates to support the March 8 and April 11, 2007, distribution charges, was harmless beyond a reasonable doubt." (8.)
Citation             Court              Date        Published?   Summary               Evidence                 Status of Case




Commonwealth v. Sao
(2010) 2010 Mass.                                                                                               conviction affirmed; Melendez-
App. Unpub. LEXIS   Massachusetts                                Appeal from firearm                            Diaz applicable but error is
104                 Court of Appeals    Feb. 2, 2010 N           convictions           ballistics certificate   harmless




Commonwealth v.
Sutherland (2010)
2010 Mass. App.      Massachusetts      Jan. 29,                 Appeal from drug                               conviction reversed; Melendez-
Unpub. LEXIS 87      Court of Appeals   2010        N            convictions           drug certificates        Diaz applies


Commonwealth v.
Grandpierre (2010)
2010 Mass. App.      Massachusetts      Jan. 28,                 Appeal from firearm                            conviction reversed; Melendez-
Unpub. LEXIS 90      Court of Appeals   2010        N            convictions           ballistics certificate   Diaz applies




Commonwealth v.
Lebron (2010) 2010
Mass. App. Unpub.    Massachusetts      Jan. 28,                 Appeal from drug                               conviction reversed; Melendez-
LEXIS 89             Court of Appeals   2010        N            convictions           drug certificates        Diaz applies
Citation                Discussion

                    "Finally, the defendant also claims reversible error based on the admission of a ballistician's report to establish that the gun was an
                    operable firearm within the meaning of G. L. c. 140, § 121. See Melendez-Diaz v. Massachusetts. It is questionable whether the
                    defendant preserved his objection in this regard at trial. Regardless, however, of whether the error is reviewed under the standard for
                    preserved error, i.e., harmless beyond a reasonable doubt, or under the substantial risk of a miscarriage of justice standard, the result
                    here is the same. (Citation.) Even without a ballistics report, the burden on the government to prove operability 'is not a heavy one,' and
Commonwealth v. Sao 'requires only that the Commonwealth present some competent evidence from which the jury can reasonably draw inferences that the
(2010) 2010 Mass.   weapon will fire.' (Citation.) This includes evidence 'that the gun was fired, the manner it was used, the ammunition inside, the testimony
App. Unpub. LEXIS   of persons who handled the gun, testimony of persons familiar with guns, or a ballistics certificate.' Id. at 3. Where such independent
104                 evidence is present, 'the admission of the ballistics certificate would not alter the verdict.' Commonwealth v. Mendes, supra." (7-9.)
                    "Defense counsel obviously was concerned about the unavailability of the analyst for cross-examination. In particular, he noted that
                    without the analyst, the Commonwealth could not establish the necessary foundation to introduce the certificate. Defense counsel
                    thereby 'raised an objection based on the confrontation clause, using the terminology and principles that then governed confrontation
                    clause analysis.' (Citations.) We therefore conclude that defense counsel's objection in this case was sufficient to preserve the
Commonwealth v.     defendant's right to benefit from the ruling of the United States Supreme Court in Melendez-Diaz v. Massachusetts. We do not hold that
Sutherland (2010)   a simple hearsay objection will necessarily preserve a confrontation clause claim. . . . we have reviewed the record carefully and
2010 Mass. App.     conclude that the admission of the certificate 'might have contributed to the conviction' and therefore was not harmless beyond a
Unpub. LEXIS 87     reasonable doubt. (Citations.)" (3-4.)
                    "Both parties concede that the ballistician's certificate was admitted in error under Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527
                    (2009). The defendant argues that we should review this error under the standard of harmless error beyond a reasonable doubt, while
Commonwealth v.     the Commonwealth argues that we should review this error under the standard of substantial risk of a miscarriage of justice. In the
Grandpierre (2010)  circumstances of this case, we need not choose between these standards. . . . On this record, where the Commonwealth directed the
2010 Mass. App.     jury to the inadmissible ballistician's certificate and the only circumstantial evidence of operability was slight, we conclude that the
Unpub. LEXIS 90     firearm conviction must be reversed under either standard of review." (3-4.)
                    "The defendant argues that his convictions for cocaine possession and for a school zone violation must be reversed because drug
                    certificates were introduced at trial without the analyst's presence and without the defendant having had a prior opportunity to cross-
                    examine the analyst, in violation of the confrontation clause of the Sixth Amendment to the United States Constitution. See Melendez-
                    Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). (Footnote.) The parties agree that there was a confrontation clause violation, but
Commonwealth v.     disagree given the proceedings below about whether we should review the error in the admission of the certificates for harmlessness
Lebron (2010) 2010  beyond a reasonable doubt or for a substantial risk of a miscarriage of justice. (Citation.) We need not decide that question, however.
Mass. App. Unpub.   Even assuming that we review for a substantial risk of a miscarriage of justice, the convictions must be vacated and the case remanded
LEXIS 89            under Melendez-Diaz." (1-2.)
Citation                Court              Date       Published?   Summary                   Evidence              Status of Case




Commonwealth v.
Martinez-Guzman                                                                                                    conviction affirmed; Melendez-
(2010) Mass. App. Ct.   Massachusetts      Jan. 22,                Appeal from driving without                     Diaz waived and not
167                     Court of Appeals   2010       Y            a license conviction        DMV record          applicable




Commonwealth v.                                                                                                    conviction affirmed; Melendez-
Madera (2010) 76        Massachusetts      Jan. 22,                Appeal from drug                                Diaz applies but error is
Mass. App. Ct. 154      Court of Appeals   2010       Y            conviction                drug certificates     harmless
Commonwealth v.
Cusick (2010) 2010
Mass. App. Unpub.       Massachusetts      Jan. 22,                Appeal from drug                                conviction affirmed; Melendez-
LEXIS 81                Court of Appeals   2010       N            conviction                n/a                   Diaz not applicable




Commonwealth v.
Hamilton (2010) 2010
Mass. App. Unpub.       Massachusetts      Jan. 20,                Appeal from drug                                conviction reversed; Melendez-
LEXIS 62                Court of Appeals   2010       N            convictions               drug certificates     Diaz applies

Commonwealth v.
Anderson (2010) 2010                                                                                               conviction affirmed; Melendez-
Mass. App. Unpub.    Massachusetts         Jan. 19,                Appeal from drug and      drug and ballistics   Diaz applies but error is
LEXIS 57             Court of Appeals      2010       N            firearm convictions       certificates          harmless
Citation                Discussion
                        "The defendant submitted a letter to this court after oral argument . . . in which he contends for the first time that the admission of the
                        attested records from the RMV violated his right to confrontation under the Sixth Amendment to the United States Constitution on the
                        basis of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The defendant waived
                        this claim by his failure to present the argument in his appellate brief, which was filed after certiorari had been granted in Melendez-Diaz.
                        (Citation.) In any event, this claim is without merit where it is clear that the RMV is an independent agency of State government charged
                        with keeping complete records on the status of drivers' licenses and 'a record of all convictions of persons charged with violations of the
Commonwealth v.         laws relating to motor vehicles.' G. L. c. 90, § 30, as amended by St. 1990, c. 256, § 5. Unlike the certificates at issue in Melendez-Diaz,
Martinez-Guzman         which are created solely to prove an element of the prosecution's case, RMV records are maintained independently of any prosecutorial
(2010) Mass. App. Ct.   purpose and are therefore admissible in evidence as ordinary business records under G. L. c. 233, § 78, as well as pursuant to G. L. c.
167                     233, § 76. (Citations.)" (171, fn. 3.)
                        "As part of its case-in-chief, the Commonwealth introduced three drug certificates to prove that the substances found in the bedroom
                        were, in fact, marijuana. (Footnote.) The admission of these certificates, without testimony from the analyst, was constitutional error and
                        violated the defendant's right to confront witnesses under the Sixth Amendment to the United States Constitution. Melendez-Diaz v.
                        Massachusetts, 129 S. Ct. 2527 (2009) (. . .). The defendant objected to the admission of the certificates; thus we review whether this
                        error was harmless beyond a reasonable doubt. In making this determination, we ask 'whether there is a reasonable possibility that the
Commonwealth v.         evidence complained of might have contributed to the conviction.' (Citations.) (Footnote.) . . . Viewing these factors as a whole, we are
Madera (2010) 76        persuaded that the Commonwealth met its burden of showing that the erroneous admission was harmless beyond a reasonable doubt."
Mass. App. Ct. 154      (156-157.)
Commonwealth v.
Cusick (2010) 2010
Mass. App. Unpub.    "The defendants have conceded below and on appeal that the substance they were smoking was marijuana, and there is no argument
LEXIS 81             before us that Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), has any bearing on this case."
                     "the United States Supreme Court granted the defendant's petition for a writ of certiorari, vacated the judgment, and remanded the case
                     to this court for further consideration in light of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). . . . [W]e agree with the
                     defendant that his objection at trial was adequate to preserve his claim of error in the admission of the certificate of chemical analysis.
                     The defendant explained his objection by reference to the need to 'have the technician on the stand' and was cut off by the trial judge
                     before he was able to elaborate further. (Footnote.) (Citation.) We consider whether the defendant's claim of constitutional error was
                     harmless beyond a reasonable doubt. (Citation.) Though the other evidence cited by the Commonwealth in its supplemental
Commonwealth v.      memorandum may indeed have been sufficient to establish that the substance the defendant sold to Trooper Patterson was crack
Hamilton (2010) 2010 cocaine, the emphasis placed on the certificate of analysis, in both the prosecutor's closing and in the judge's charge to the jury,
Mass. App. Unpub.    persuades us that the improperly admitted certificate may well have contributed to the jury's verdict of guilt. (Citation.) We are
LEXIS 62             accordingly constrained to reverse the judgment and set aside the verdict." (1-2.)
                     "The admission of ballistic and drug certificates pursuant to the governing statutes without allowing the defendant an opportunity to
Commonwealth v.      cross-examine the analysts has been held to be error. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). (Citation.) As the
Anderson (2010) 2010 defendant objected to these exhibits upon confrontation grounds at the time of their admission, we examine the issue to determine
Mass. App. Unpub.    whether admitting the certificates requires us to reverse the convictions or whether the error can be viewed as harmless beyond a
LEXIS 57             reasonable doubt. (Citations.)" (2.)
Citation                 Court              Date        Published?   Summary                   Evidence                 Status of Case

Commonwealth v.
Snow (2010) 76 Mass. Massachusetts          Jan. 14,                 Appeal from drug and                               conviction reversed; Melendez-
App. Ct. 116         Court of Appeals       2010        Y            firearm convictions       ballistics certificate   Diaz issue not reached

Commonwealth v.
Mack (2010) 2010
Mass. App. Unpub.        Massachusetts      Jan. 14,                 Appeal from drug                                   conviction reversed; Melendez-
LEXIS 52                 Court of Appeals   2010        N            conviction                drug certificate         Diaz applies
Commonwealth v.
Camacho (2010) 2010
Mass. App. Unpub.        Massachusetts      Jan. 11,                 Appeal from firearm                                conviction reversed; Melendez-
LEXIS 28                 Court of Appeals   2010        N            convictions               ballistics certificate   Diaz applies


Commonwealth v.                                                                                                         conviction affirmed; Melendez-
Johnson (2010) 76        Massachusetts                               Appeal from drug                                   Diaz applies but error is
Mass. App. Ct. 80        Court of Appeals   Jan. 5, 2010 Y           conviction                drug certificate         harmless
                                                                     On remand from the US
Commonwealth v.                                                      Supreme Court (see row
Rivera (2009) 76 Mass.   Massachusetts      Dec. 30,                 11, above). Appeal from                            conviction reversed; Melendez-
App. Ct. 67              Court of Appeals   2009        Y            drug convictions.         drug certificate         Diaz applies
Commonwealth v.
Wright (2009) 2009
Mass. App. Unpub. LE     Massachusetts      Dec. 24,                 Appeal from drug                                   conviction reversed; Melendez-
1350XIS                  Court of Appeals   2009        N            conviction                drug certificate         Diaz applies



Commonwealth v.
Ware (2009) 76 Mass.     Massachusetts      Dec. 23,                 Appeal from firearm                                conviction reversed; Melendez-
App. Ct. 53              Court of Appeals   2009        Y            convictions               ballistics certificate   Diaz applies
Commonwealth v.
Phippen (2009) 2009
Mass. App. Unpub.        Massachusetts      Dec. 18,                 Appeal from drug                                   conviction reversed; Melendez-
1319                     Court of Appeals   2009        N            conviction                drug certificate         Diaz applies
Citation                Discussion

Commonwealth v.      "The defendant also claims error in the denial of his motion for new trial without a hearing, predicated on the ineffective assistance of
Snow (2010) 76 Mass. trial counsel, as well in the admission of a ballistics certificate absent expert testimony in violation of Melendez-Diaz v. Massachusetts,
App. Ct. 116         129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). In view of the result we reach, we need not address these contentions." (117, fn. 1.)
                     "The Commonwealth introduced a certificate of analysis without testimony from the analyst to establish the identity of the substance
Commonwealth v.      purchased by Lieutenant Berna as cocaine. The defendant argues that the introduction of the certificate in evidence violated his right to
Mack (2010) 2010     confrontation under the Sixth Amendment to the United States Constitution. We agree. See Melendez-Diaz v. Massachusetts, 129 S.
Mass. App. Unpub.    Ct. 2527, 174 L. Ed. 2d 314 (2009). Because the defendant preserved his challenge to the certificate, we determine whether the effect
LEXIS 52             of the constitutional error is harmless beyond a reasonable doubt." (5.)
Commonwealth v.      "The Commonwealth concedes, and we agree, that admission of the ballistics certificate over the defendant's objection violated the
Camacho (2010) 2010 defendant's right under the Sixth Amendment to the United States Constitution to confront and cross-examine the witnesses against
Mass. App. Unpub.    him. See Melendez-Diaz. The Commonwealth also concedes, commendably, that in light of the evidence at trial the error is not
LEXIS 28             harmless beyond a reasonable doubt and requires reversal of the defendant's convictions. (Citation.)" (1-2.)

                       "Here, as in Melendez-Diaz, there was no showing that the analyst was unavailable, and the defendant had not previously cross-
Commonwealth v.        examined her. Therefore, under Melendez-Diaz, admission of the certificate of analysis was error. Although the defendant failed to
Johnson (2010) 76      preserve the issue at trial, we need not consider the appropriate standard of review, (citations), as we conclude that, even under the
Mass. App. Ct. 80      more stringent standard of review for preserved error, the error here was harmless beyond a reasonable doubt. (Citation)." (83.)
                       "A petition for a writ of certiorari was granted by the United States Supreme Court and, on June 29, 2009, the Supreme Court ordered
Commonwealth v.        the judgments vacated and remanded the case for further consideration in the light of its decision in Melendez-Diaz v. Massachusetts,
Rivera (2009) 76 Mass. 129 S. Ct. 2527. (Citation.) In Melendez-Diaz, the Supreme Court determined that it is error for the 'prosecution to prove its case via ex
App. Ct. 67            parte out-of-court affidavits'. Id. at 2542." (68.)
Commonwealth v.        "Because the certificate comprised the exclusive evidence of the nature of the charged heroin, we treat the appeal as a straightforward
Wright (2009) 2009     application of the Melendez-Diaz doctrine. . . Here we need not choose between the standards [of review]. Because the certificate was
Mass. App. Unpub. LE the only evidence of the true nature of the heroin, an essential element of the charged offense, its admission was necessarily decisive of
1350XIS                the verdict under either standard." (4-6.)

                     "To prove that the handgun met this definition, the Commonwealth introduced a certificate from a ballistics expert . . . . The admission of
                     the ballistics certificate without allowing the defendant an opportunity to cross-examine the ballistics expert has been ruled to be
Commonwealth v.      constitutional error. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and Morales v. Massachusetts, 129 S. Ct. 2858
Ware (2009) 76 Mass. (2009). The defendant properly preserved this issue by objecting when the Commonwealth introduced the certificate during the trial.
App. Ct. 53          Therefore, we examine the error to determine whether it was harmless beyond a reasonable doubt. (Citaton.)" (56-57.)
Commonwealth v.
Phippen (2009) 2009
Mass. App. Unpub.    "The Commonwealth admits that the drug analysis certificates were improperly admitted. See Melendez-Diaz. Because the defendant
1319                 objected to the admission of the certificates at trial, we consider whether the error is harmless beyond a reasonable doubt. " (4-5.)
Citation               Court              Date        Published?   Summary                    Evidence           Status of Case
Commonwealth v.
Sanders (2009) 2009
Mass. App. Unpub.      Massachusetts      Dec. 14,                 Appeal from drug                              conviction reversed; Melendez-
1293                   Court of Appeals   2009        N            conviction                 drug certificate   Diaz applies
Commonwealth v.
Mells (2009) 2009
Mass. App. Unpub.      Massachusetts                               Appeal from drug                              conviction reversed; Melendez-
1287                   Court of Appeals   Dec. 9, 2009 N           conviction                 drug certificate   Diaz applies

Commonwealth v.
DePina (2009) 75       Massachusetts                               Appeal from drug                              conviction reversed; Melendez-
Mass. App. Ct. 842     Court of Appeals   Dec. 8, 2009 Y           conviction                 drug certificate   Diaz applies

Commonwealth v.
Crawford (2009) 2009
Mass. App. Unpub.      Massachusetts                               Appeal from dui and motor                     conviction affirmed; Melendez-
1266                   Court of Appeals   Dec. 8, 2009 N           vehicle convictions       blood test report   Diaz not applicable

Commonwealth v.
Santana (2009) 2009                                                                                              conviction affirmed; Melendez-
Mass. App. Unpub.      Massachusetts                               Appeal from drug                              Diaz applies but error is
1248                   Court of Appeals   Dec. 4, 2009 N           conviction                 drug certificate   harmless
Commonwealth v.
Vasquez (2009) 2009
Mass. App. Unpub.      Massachusetts      Nov. 25,                 Appeal from drug                              conviction reversed; Melendez-
1228                   Court of Appeals   2009        N            conviction                 drug certificate   Diaz applies
Commonwealth v.
Camacho (2009) 2009
Mass. App. Unpub.      Massachusetts      Nov. 20,                 Appeal from drug                              conviction reversed; Melendez-
1212                   Court of Appeals   2009        N            conviction                 drug certificate   Diaz applies
Citation               Discussion
Commonwealth v.
Sanders (2009) 2009    "In view of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L. Ed. 2d 314 (2009), the Commonwealth concedes that admission of
Mass. App. Unpub.      the drug certificate without making the analyst available for cross-examination was error. The remaining debate is over the extent to
1293                   which this error requires reversal of the convictions. " (3.)
Commonwealth v.        "we note that the defendant's trial counsel objected to the admission of the drug certificate on Crawford grounds. We have reviewed the
Mells (2009) 2009      record and have determined that although there was some evidence of an alleged drug transaction, the only evidence that the
Mass. App. Unpub.      substance was in fact cocaine was the drug analysis certificate. Under these circumstances and under any standard of review, it is clear
1287                   that the convictions cannot stand. Massachusetts v. Melendez-Diaz, supra." (1-2.)
                       "However, since the trial, the United States Supreme Court has explicitly ruled that admission of such certificates without testimony from
Commonwealth v.        the authoring analyst violates the Sixth Amendment right to confrontation. Melendez-Diaz v. Massachusetts. The defendant preserved
DePina (2009) 75       the issue through his objection. We review a preserved constitutional error to determine whether it was harmless beyond a reasonable
Mass. App. Ct. 842     doubt." (851.)

Commonwealth v.        "It is clear that the diagnosis of alcohol intoxication in this case related directly to the defendant's treatment and medical history. In
Crawford (2009) 2009   Commonwealth v. Lampron, supra at 345-346, this court also concluded that the statements in the medical records described, supra,
Mass. App. Unpub.      were neither per se testimonial, nor testimonial in fact, and, therefore, did not violate the confrontation clause. See Melendez-Diaz v.
1266                   Massachusetts, 129 S. Ct. 2527, 2533 n.2 (2009) ('[M]edical reports created for treatment purposes [are not] testimonial')." 7.)
                       "The admission of the certificate without testimony from the analyst was constitutional error. See Melendez-Diaz v. Massachusetts, 129
Commonwealth v.        S. Ct. 2527, 2532 (2009). When an issue is not properly preserved at trial, our review is limited to whether the error created a
Santana (2009) 2009    substantial risk of a miscarriage of justice. (Citation.) However, the question of the appropriate standard of review need not be resolved
Mass. App. Unpub.      because even if the standard more favorable to the defendant applies, i.e., harmless beyond a reasonable doubt, the outcome would be
1248                   the same." (9-10.)
Commonwealth v.        "The Commonwealth, appropriately, concedes that admission of the drug certificate was error and that, in the circumstances of this
Vasquez (2009) 2009    case, it was not harmless. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Commonwealth v. Rodriguez, 75 Mass. App.
Mass. App. Unpub.      Ct. 235, 245 (2009). After an independent review, we agree. Accordingly, the judgments are reversed, and the verdicts are set aside."
1228                   (1.)
Commonwealth v.
Camacho (2009) 2009 "The defendant claims that the judge improperly admitted a drug analysis certificate over his objection. See Melendez-Diaz v.
Mass. App. Unpub.   Massachusetts. Given the defendant's objection, we apply the harmless beyond a reasonable doubt standard of review. (Citations.) . . .
1212                We conclude, as the Commonwealth laudably concedes, that the error here was not harmless beyond a reasonable doubt." (2.)
Citation               Court              Date       Published?   Summary                Evidence                 Status of Case




Commonwealth v.
Morales (2009) 2009
Mass. App. Unpub.      Massachusetts      Nov. 20,                Appeal from drug                                conviction reversed; Melendez-
1211                   Court of Appeals   2009       N            conviction             drug certificate         Diaz applies



Commonwealth v.
Hollister (2009) 75    Massachusetts      Nov. 17,                Appeal from firearm                             conviction reversed; Melendez-
Mass. App. Ct. 729     Court of Appeals   2009       Y            convictions            ballistics certificate   Diaz applies


Commonwealth v.
Marshall (2009) 2009                                                                                              conviction affirmed; Melendez-
Mass. App. Unpub.      Massachusetts      Nov. 17,                Appeal from drug and   drug and ballistics      Diaz applies but error is
1195                   Court of Appeals   2009       N            firearm convictions    certificates             harmless
Commonwealth v.
Jordan (2009) 2009                                                                                                conviction affirmed; Melendez-
Mass. App. Unpub.      Massachusetts      Nov. 17,                Appeal from firearm                             Diaz applies but error is
1193                   Court of Appeals   2009       N            convictions            ballistics certificate   harmless




Commonwealth v. Bin                                                                                               conviction affirmed; Melendez-
Li (2009) 2009 Mass.   Massachusetts      Nov. 13,                Appeal from drug                                Diaz applies but error is
App. Unpub. 1185       Court of Appeals   2009       N            conviction             drug certificate         harmless


Commonwealth v.
Bonner (2009) 2009
Mass. App. Unpub.      Massachusetts      Nov. 12,                Appeal from drug                                conviction reversed; Melendez-
1181                   Court of Appeals   2009       N            conviction             drug certificate         Diaz applies
Citation               Discussion

                       "During the trial, the Commonwealth introduced four drug certificates. . . . Since that time, the United States Supreme Court has ruled
                       that drug certificates constitute 'testimonial' hearsay evidence under Crawford v. Washington, 541 U.S. 36 (2004), and the certificates
                       were thus admitted erroneously. Melendez-Diaz v. Massachusetts. . . . Melendez-Diaz established that '[t]here is little doubt that [drug
                       certificates] fall within the core class of testimonial statements thus described.' Melendez-Diaz, supra (internal citation omitted). . . .
                       Having determined that an error occurred, we must now determine what standard of review applies. Though the defendant failed to
Commonwealth v.        preserve the issue, the trial in this case occurred prior to the Crawford decision, thus triggering the clairvoyance exception. Simply put, a
Morales (2009) 2009    'defendant does not waive a constitutional issue by failing to raise it before the theory on which his argument is premised has been
Mass. App. Unpub.      sufficiently developed to put him on notice that the issue is a live issue.' (Citation.) We therefore review the claim as if it had been
1211                   properly preserved and will reverse unless the error was harmless beyond a reasonable doubt." (2-4.)
                       "The defendant timely objected to the admission of the certificate, specifically arguing that its admission without an opportunity to
                       confront the ballistician violated his Sixth Amendment confrontation right as explained in Crawford v. Washington, 541 U.S. 36 (2004)
                       (Footnote.) The objection was well-founded, and it was subsequently determined that it was error to admit the certificate over it.
Commonwealth v.        Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009) (Footnote). See Morales v. Massachusetts, 129 S. Ct. 2858 (2009), in
Hollister (2009) 75    which the Supreme Court vacated the judgment of this court in Commonwealth v. Morales, 71 Mass. App. Ct. 587, 588-589 (2008), a
Mass. App. Ct. 729     case involving the admission of a ballistics certificate." (730-731.)

                       "The recent Supreme Court decision, Melendez-Diaz v. Massachusetts, 129 S.Ct. 252 (2009), has ruled that it is error to admit drug and
Commonwealth v.        ballistic certificates without giving the defendant an opportunity to cross-examine the certifying analyst. . . . In this case, we recognize
Marshall (2009) 2009   that arguments can be made as to the proper standard of review to be applied, given the lack of an objection to the admission of either
Mass. App. Unpub.      the drug or ballistics certificate based on confrontation grounds. (Footnote.) Nevertheless, we affirm the defendant's firearm convictions
1195                   because we are satisfied that the error was harmless beyond a reasonable doubt." (2-3.)
Commonwealth v.        "The recent decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), rendered error
Jordan (2009) 2009     the admission in evidence of certificates such as the ballistics certificate admitted in the case at bar. (Footnote.) Nonetheless,
Mass. App. Unpub.      examining the issue under the framework of Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983), we are satisfied that the error
1193                   was harmless beyond a reasonable doubt. " (4-5.)
                       "The defendant's trial took place after the Supreme Judicial Court's decision in Commonwealth v. Verde, 444 Mass. 279, 280, 283-284
                       (2005) (holding that drug certificates of analysis did not implicate confrontation clause) and certiorari was not granted in Melendez-Diaz
                       until long after the defendant's trial. 'Although it is not free of doubt, the 'clairvoyance' exception may apply in these circumstances. . . .
                       Arguably, the defendant could not reasonably have been expected to assert at trial a constitutional proposition that we had so recently
Commonwealth v. Bin    rejected; it would therefore follow that he could raise the issue now and have us apply the standard for constitutional error, i.e., whether
Li (2009) 2009 Mass.   the error was harmless beyond a reasonable doubt." (Citation.). Whether we apply this standard or the substantial risk standard, the
App. Unpub. 1185       outcome would be the same." (2-3.)
                       "We are constrained to reverse the judgment and set aside the verdict on the indictment charging the defendant with possession of
                       cocaine with the intent to distribute. . . . Under Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Commonwealth's
Commonwealth v.        admission of drug analysis certificates violated the defendant's confrontation rights, and posed a substantial risk of a miscarriage of
Bonner (2009) 2009     justice. See Commonwealth v. Brazie, 66 Mass. App. Ct. 315, 319 (2006). As the only additional evidence concerning the nature of the
Mass. App. Unpub.      seized substance was circumstantial and independently insufficient, 'it [would] be reasonable to conclude that the error materially
1181                   influenced the verdict.' (Citation.) " (1.)
Citation               Court              Date        Published?   Summary                     Evidence               Status of Case
Commonwealth v.
Moses (2009)2009
Mass. App. Unpub.      Massachusetts      Nov. 12,                 Appeal from drug                                   conviction reversed; Melendez-
LEXIS 1180             Court of Appeals   2009        N            conviction                  drug certificate       Diaz applies
Commonwealth v.
Brown (2009) 2009
Mass. App. Unpub.      Massachusetts      Nov. 12,                 Appeal from drug                                   conviction reversed; Melendez-
1179                   Court of Appeals   2009        N            conviction                  drug certificate       Diaz applies

Commonwealth v.                                                                                                       Melendez-Diaz applies; one
Keller (2009) 2009                                                                                                    conviction reversed one
Mass. App. Unpub.      Massachusetts      Nov. 10,                 Appeal from drug                                   affirmed (due to harmless
1165                   Court of Appeals   2009        N            conviction                  drug certificate       error)
Commonwealth v.
Davis (2009) 2009
Mass. App. Unpub.      Massachusetts                               Appeal from drug                                   conviction reversed; Melendez-
1161                   Court of Appeals   Nov. 9, 2009 N           conviction                  drug certificate       Diaz applies

Commonwealth v.                                                                                                       conviction affirmed; Melendez-
Harris (2009) 75 Mass. Massachusetts                               Appeal from drug                                   Diaz applies but error is
App. Ct. 696           Court of Appeals   Nov. 5, 2009 Y           conviction                  drug certificate       harmless




Commonwealth v.
Dixon (2009) 2009
Mass. App. Unpub.      Massachusetts                               Appeal from drug                                   conviction reversed; Melendez-
1154                   Court of Appeals   Nov. 5, 2009 N           conviction                  drug certificate       Diaz applies
Commonwealth v.
Nero (2009) 2009
Mass. App. Unpub.      Massachusetts                               Appeal from drug                                   conviction reversed; Melendez-
1137                   Court of Appeals   Nov. 4, 2009 N           conviction                  drug certificate       Diaz applies
Commonwealth v.
Douglas (2009) 75      Massachusetts                               Appeal from motor vehicle                          conviction reversed; Melendez-
Mass. App. Ct. 643     Court of Appeals   Nov. 2, 2009 Y           homicide conviction         blood alcohol report   Diaz not an issue
Citation                Discussion
Commonwealth v.
Moses (2009)2009        "Upon review of the record, the briefs, and the transcript, and in light of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), we
Mass. App. Unpub.       are constrained to vacate the defendant's conviction for possession with intent to distribute cocaine . . . and remand for such
LEXIS 1180              proceedings as the Commonwealth deems appropriate."
Commonwealth v.
Brown (2009) 2009       "For the reasons stated in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), we conclude that the defendants'
Mass. App. Unpub.       confrontation rights were violated and all the cocaine convictions must be reversed. (Footnote.)The Commonwealth's proof was
1179                    particularly deficient and dependent on the certificate to establish the weight of the cocaine on the trafficking charge." (1-2.)
                        "the United States Supreme Court recently clarified that '[a]bsent a showing that the analysts were unavailable to testify at trial and that
Commonwealth v.         petitioner had a prior opportunity to cross-examine them, [defendant is] entitled to 'be confronted with' the analysts at trial.' Melendez-
Keller (2009) 2009      Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), quoting from Crawford v. Washington, 541 U.S. 36, 54 (2004). The admission of
Mass. App. Unpub.       the drug certificates without testimony from the analyst was error. The question before us is whether such error requires reversal of one
1165                    or both convictions." (2-3.)
Commonwealth v.
Davis (2009) 2009
Mass. App. Unpub.      "Upon review of the record, the briefs, and the transcript, and in reliance on Melendez-Diaz v. Massachusetts, supra, we are constrained
1161                   to vacate the defendant's convictions. " (1-2.)
                       "The Melendez-Diaz issue is raised for the first time on appeal and expanded in the defendant's reply brief; our review is therefore
Commonwealth v.        limited to whether admission of the drug certificates created a substantial risk of a miscarriage of justice. (Citation.) Even if the more
Harris (2009) 75 Mass. stringent standard of harmless beyond a reasonable doubt were applied, we would find the introduction of the drug certificates in this
App. Ct. 696           case to be harmless beyond a reasonable doubt." (705-706.)
                       "The cocaine certificate was admitted over the defendant's objection and we thus review to determine whether the error was harmless
                       beyond a reasonable doubt. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532; (Citation.) Because the defendant did not
                       timely object to the admission of the buprenorphine certificate, (footnote) we review to determine whether the error resulted in a
                       substantial risk of a miscarriage of justice. (Citation.) Apart from the certificate, there was no direct evidence that the white powder was
                       cocaine. . . . There was evidence that the powder was packaged in "twists," which an experienced narcotics officer testified was
                       consistent with how cocaine is typically packaged for distribution. Whether this evidence was sufficient to meet the Commonwealth's
Commonwealth v.        burden of proving . . . that the substance was cocaine is a question we need not reach because, even if sufficient, it was not of such
Dixon (2009) 2009      strength that we can preclude a reasonable possibility that 'the error complained of did not contribute to the verdict obtained.'
Mass. App. Unpub.      (Citations.) The defendant was charged with, and convicted of, possessing a controlled substance (in this case buprenorphine) . . . . The
1154                   Commonwealth concedes that, apart from the drug analysis certificate, there was no evidence from which the jury could determine what
Commonwealth v.        "The defendant's trial counsel objected at his jury-waived trial to admission of a certificate of chemical analysis of the crack cocaine the
Nero (2009) 2009       defendant had distributed to an undercover officer. Admission of the certificate over the defendant's objection was error. See Melendez-
Mass. App. Unpub.      Diaz v. Massachusetts. Because the claim of constitutional error was preserved, we consider whether it was harmless beyond a
1137                   reasonable doubt. " (1.)
Commonwealth v.        "The defendant presented no issue of a denial of the sixth amendment right to confrontation by reason of the admission of the blood
Douglas (2009) 75      alcohol test result. The rule of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L. Ed. 2d 314 (2009), has played no part in the
Mass. App. Ct. 643     appeal." (654, fn. 15.)
Citation               Court              Date       Published?   Summary               Evidence                 Status of Case



Commonwealth v.
Nassor (2009) 2009
Mass. App. Unpub.      Massachusetts      Oct. 29,                Appeal from drug                               conviction reversed; Melendez-
1173                   Court of Appeals   2009       N            conviction            drug certificate         Diaz applies




Commonwealth v.
Dexter (2009) 2009
Mass. App. Unpub.      Massachusetts      Oct. 29,                Appeal from robbery                            conviction reversed; Melendez-
1171                   Court of Appeals   2009       N            conviction            DNA report               Diaz issue not reached

Commonwealth v.
Chery (2009) 75 Mass. Massachusetts       Oct. 27,                Appeal from firearm                            conviction reversed; Melendez-
App. Ct. 909          Court of Appeals    2009       Y            convictions           ballistics certificate   Diaz applies

Commonwealth v.
Nixon (2009) 2009
Mass. App. Unpub.      Massachusetts      Oct. 26,                Appeal from drug                               conviction reversed; Melendez-
1099                   Court of Appeals   2009       N            conviction            drug certificate         Diaz applies

Commonwealth v.
Baxter (2009) 2009
Mass. App. Unpub.      Massachusetts      Oct. 22,                Appeal from drug                               conviction reversed; Melendez-
1092                   Court of Appeals   2009       N            conviction            drug certificate         Diaz applies
Commonwealth v.
Augustin (2009) 2009
Mass. App. Unpub.      Massachusetts      Oct. 19,                Appeal from firearm                            conviction reversed; Melendez-
1062                   Court of Appeals   2009       N            convictions           ballistics certificate   Diaz applies
Citation                 Discussion
                         "The defendant challenges the admission of drug certificates as violating his right of confrontation. His objection was, as the
                         Commonwealth agrees, properly preserved. . . . In its recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009)
                         . . . the United States Supreme Court overruled the Supreme Judicial Court's decision in Verde and held that '[a]bsent a showing that
Commonwealth v.          the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled
Nassor (2009) 2009       to 'be confronted with' the analysts at trial.' Under Melendez-Diaz, the admission of the drug certificates violated the defendant's right to
Mass. App. Unpub.        confrontation. In the face of such constitutional error, the judgments below must be reversed unless the error is "harmless beyond a
1173                     reasonable doubt.' (Citations.)" (3-4.)

                      "The defendant argues that his right to confrontation under the Sixth Amendment to the United States Constitution was violated. See
                      Melendez-Diaz v. Massachusetts. This objection was properly preserved. The defendant claims that Sullivan impermissibly testified as
                      to the conclusions of other DNA analysts who were neither present, nor previously subject to cross-examination. See ibid. [Discussion of
                      the expert's testimony.] In deciding this case, we invoke the doctrine that we should avoid addressing constitutional questions where it is
Commonwealth v.       unnecessary to do so. (Citation.) We therefore do not, and need not, address the Melendez-Diaz argument. Under the law of evidence,
Dexter (2009) 2009    expert testimony in a circumstance like this by one who has not conducted the underlying tests or originally analyzed test results is
Mass. App. Unpub.     admissible only where the expert's opinions are 'primarily based on her own experience and expertise as independently applied to [the]
1171                  test results obtained.' (Citation.) Here, Sullivan simply recited the conclusions of others. Such testimony is inadmissible." (2-6.)
                      "As the Commonwealth acknowledges, in light of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009), the admission of
Commonwealth v.       these ballistics certificates without the live testimony of the certifying ballistician violated the defendant's constitutional rights under the
Chery (2009) 75 Mass. confrontation clause of the Sixth Amendment to the United States Constitution. . . . With respect to the firearm charge, the firearm
App. Ct. 909          certificate was essential to the conviction. " (910.)
                      "Admission of the drug certificate over objection violated the defendant's constitutional right to confront and cross-examine the
Commonwealth v.       witnesses against him. See Melendez-Diaz v. Massachusetts. Without the certificate, the Commonwealth's only evidence as to the
Nixon (2009) 2009     nature of the substance was Terestre's testimony that the substance 'appeared to be a derivative of cocaine.' Whether such testimony
Mass. App. Unpub.     suffices to prove the nature of the substance beyond a reasonable doubt is doubtful. Even were the evidence sufficient, we are not
1099                  satisfied that the erroneous admission of the certificate was harmless beyond a reasonable doubt." (4-5.)
                      "Over the defendant's objection (made specifically on Sixth Amendment grounds and citing to Crawford v. Washington, 541 U.S. 36, 54
Commonwealth v.       [2004]), the judge erroneously admitted drug analysis certificates stating that the green leafy substance in one of the baggies in the
Baxter (2009) 2009    defendant's possession was marijuana and that the white powder in one of the other baggies was cocaine. (Footnote.) See Melendez-
Mass. App. Unpub.     Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). Because the defendant properly preserved the objection, we evaluate the admission of
1092                  the certificates to determine whether it was harmless beyond a reasonable doubt." (9.)
Commonwealth v.       "Admission of the ballistics certificate over objection violated the defendant's constitutional right to confront and cross-examine the
Augustin (2009) 2009 witnesses against him. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The Commonwealth has failed to establish that
Mass. App. Unpub.     the error is harmless beyond a reasonable doubt. Indeed, without the certificate the Commonwealth's evidence would not even suffice
1062                  to establish that the rifle is a firearm." (3-4.)
Citation              Court              Date       Published?   Summary                  Evidence                 Status of Case



                                                                                                                   Judgments affirmed; no
                                                                                                                   substantial error. Review
Commonwealth v.                                                                                                    denied by Commonwealth v.
Vasquez (2009) 75     Massachusetts      Oct. 16,                Appeal from drug                                  Vasquez, 2009 Mass. LEXIS
Mass. App. Ct. 446    Court of Appeals   2009       Y            conviction               drug certificate         1043 (Mass., Dec. 22, 2009)
Commonwealth v.
Dennis (2009) 2009
Mass. App. Unpub.     Massachusetts      Oct. 15,                                                                  conviction reversed; Melendez-
1047                  Court of Appeals   2009       N            Not available on Lexis   Not available on Lexis   Diaz applies



Commonwealth v.
Zewiey (2009) 2009                                                                                                 conviction affirmed; Melendez-
Mass. App. Unpub.     Massachusetts      Oct. 14,                Appeal from drug                                  Diaz applies but error is
1055                  Court of Appeals   2009       N            conviction               drug certificate         harmless




Commonwealth v.
Montina (2009) 2009                                                                                                conviction affirmed; Melendez-
Mass. App. Unpub.     Massachusetts      Oct. 14,                Appeal from drug                                  Diaz applies but error is
1052                  Court of Appeals   2009       N            conviction               drug certificate         harmless




Commonwealth v.                                                                                                    conviction affirmed; Melendez-
Mendes (2009) 75      Massachusetts      Oct. 13,                Appeal from firearm                               Diaz applies but error is
Mass. App. Ct. 390    Court of Appeals   2009       Y            convictions              ballistics certificate   harmless
Citation              Discussion
                      [Long discussion of whether the Melendez-Diaz decision was foreseeable after Crawford.] "Notwithstanding what was an active, indeed,
                      intense Sixth Amendment legal issue, no objection on these Federal constitutional grounds was interposed in this case. Therefore, the
                      error in the admission of the drug certificates is reviewed in this appeal to determine whether there was a substantial risk of a
                      miscarriage of justice. We determine such a risk was not presented. In this case, there was testimony by the undercover officer that he
                      requested to purchase cocaine from the defendant by its street name and was then given the substance in question in exchange for
Commonwealth v.       money, which supports the inference that the substances from the drug transactions, were, in fact, cocaine. . . . Given there was
Vasquez (2009) 75     circumstantial evidence that supported proof of the element of each crime, we find that any error was insufficient to materially influence
Mass. App. Ct. 446    the verdict." (461-462.)
Commonwealth v.
Dennis (2009) 2009    "On review of the record, the briefs, and the transcript, nothing has been made to appear that would cause us to conclude that the
Mass. App. Unpub.     circumstances presented here are not controlled by the teachings of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L. Ed. 2d
1047                  314 (2009). Accordingly, we are constrained to vacate the defendant's conviction and remand"
                      "The United States Supreme Court recently held in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531-2532 (2009), that under the
                      confrontation clause, admission of forensic science certificates as prima facie evidence of the facts stated therein violates a defendant's
                      Sixth Amendment right. That decision does not alter our determination that the conviction here should be upheld. Under either the
Commonwealth v.       harmless error standard or the substantial risk of a miscarriage of justice standard, the defendant has not met his burden. (Footnote.)
Zewiey (2009) 2009    (Citation.) . . . The defendant did not argue that the substances were not drugs, and, indeed, there was other evidence that the drugs
Mass. App. Unpub.     were Oxycontin. See Melendez-Diaz, supra at 2542 n.14 (expressly rejecting that proof of cocaine may only be provided by drug analyst
1055                  testimony)." (8-9.)

                      "With respect to the drug certificate issue, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), recently held that the admission of
                      such evidence without live testimony by the analyst violates the confrontation clause of the Sixth Amendment to the United States
                      Constitution. We note, however, that where an adequate foundation is laid, an experienced police officer can testify that a substance is
                      a particular controlled drug. (Citation.) See also Melendez-Diaz, supra at 2542 n.14 (expressly rejecting that proof of cocaine may only
Commonwealth v.       be provided by drug analyst testimony). Here, both Officer Gabaree and Detective Lavey, who, without objection, identified the
Montina (2009) 2009   substances as marijuana, testified that they were trained in drug investigations generally, were trained specifically in drug recognition,
Mass. App. Unpub.     and described that training. The judge would have been in a position to make the determination that Officer Gabaree and Detective
1052                  Lavey were qualified to give Court vacated to the nature of the substance." (7-8.)
                      "The United State Supreme an opinion as the judgment of this court in Commonwealth v. Morales, 71 Mass. App. Ct. 587, 588-589
                      (2008), a case involving the admission of a ballistics certificate, and remanded the case to this court in light of the Melendez-Diaz
                      decision. See Morales v. Massachusetts, 129 S. Ct. 2858 (2009). Trial counsel did not preserve the error by objection. . . . This
                      chronology creates a question about the applicable standard of appellate review. . . . In the circumstances of a trial after the Verde
                      decision but before the allowance of certiorari in the Melendez-Diaz case, the Supreme Judicial Court has recently left open the
                      applicability of the 'clairvoyance' standard. See Commonwealth v. Connolly, 454 Mass. 808, 830 (2009). Here, as there, a choice of
                      standard is unnecessary. Viewed under the lens of either an unpreserved error inspected for substantial risk of a miscarriage of justice,
                      or a preserved error examined for harmlessness beyond a reasonable doubt, the admission of the ballistics certificate would not alter
                      the verdict. The strength of the independent evidence of the operability of the handgun shows beyond a reasonable doubt the
Commonwealth v.       harmlessness of the admission of the certificate. That independent evidence included testimony of three audible shots, the three empty
Mendes (2009) 75      casings, and the smell of gunpowder." (396-397.)
Mass. App. Ct. 390
Citation               Court              Date        Published?   Summary                  Evidence                 Status of Case

Commonwealth v.
Brown (2009) 75 Mass. Massachusetts                                Appeal from firearm                               conviction reversed; Melendez-
App. Ct. 361          Court of Appeals    Oct. 8, 2009 Y           convictions              ballistics certificate   Diaz applies




Commonwealth v.
Roach (2009) 2009
Mass. App. Unpub.      Massachusetts                                                                                 conviction reversed; Melendez-
1029                   Court of Appeals   Oct. 1, 2009 N           Not available on Lexis   Not available on Lexis   Diaz issue not reached



Commonwealth v.
Rodriguez (2009) 75    Massachusetts      Sept. 25,                Appeal from drug                                  conviction reversed; Melendez-
Mass. App. Ct. 235     Court of Appeals   2009        Y            conviction               drug certificate         Diaz applies



Commonwealth v.
Marin (2009) 2009                                                                                                    conviction affirmed; Melendez-
Mass. App. Unpub.      Massachusetts      Sept. 1,                 Appeal from drug                                  Diaz applies but error is
519                    Court of Appeals   2009        N            conviction               drug certificate         harmless


Commonwealth v.
Bultumer (2009) 2009
Mass. App. Unpub.      Massachusetts      Aug. 12,                 Appeal from drug                                  Melendez-Diaz issue not
548                    Court of Appeals   2009        N            conviction               drug certificate         reached

Commonwealth v.
Brisbon (2009) 2009
Mass. App. Unpub.      Massachusetts      Jun. 15,                 Appeal from drug                                  conviction affirmed; Melendez-
772                    Court of Appeals   2009        N            conviction               drug certificate         Diaz issue preserved
Citation              Discussion
                      "As the Commonwealth concedes, in light of Melendez-Diaz, supra, the admission of the ballistics certificate without the opportunity to
Commonwealth v.       cross-examine the certifying ballistician was constitutional error. (Footnote.) As the Commonwealth further concedes, because the issue
Brown (2009) 75 Mass. was properly preserved at trial, the applicable standard of review is whether, on the whole record, the error was harmless beyond a
App. Ct. 361          reasonable doubt." (363.)

                       "The defendant also contends that his right of confrontation under the Sixth Amendment to the United States Constitution was violated
                       by the admission, over his objection, of a certificate of drug analysis, without affording him an opportunity to cross-examine the chemist
                       who analyzed the substance and certified that it was cocaine. See Melendez-Diaz v. Massachusetts. The Commonwealth does not
                       dispute that the holding of Melendez-Diaz applies to the instant case and that the applicable standard of review is whether, on the whole
Commonwealth v.        record, the admission of the drug certificate was harmless beyond a reasonable doubt. The only question is whether that standard has
Roach (2009) 2009      been met. The issue is not free from doubt. While there was some police testimony concerning the substance, it was far less compelling
Mass. App. Unpub.      than that discussed in Commonwealth v. Connolly, 454 Mass. 808, 831-832. . . . We need not resolve the issue, however, in view of our
1029                   decision that the failure to give the coconspirator statement instruction constitutes reversible error." (5-6.)
                       "At trial, over the defendant's objections, five certificates of analysis from the State crime laboratory were introduced by the
                       Commonwealth and admitted in evidence. (Footnote.) The certificates stated that the substances seized by police and connected to the
                       defendant were cocaine of specific weights and marijuana. The admission of this evidence without testimony from the analyst was
Commonwealth v.        constitutional error, as it violated the defendant's rights under the confrontation clause of the Sixth Amendment to the United States
Rodriguez (2009) 75    Constitution. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (admission of laboratory certificates without live testimony by
Mass. App. Ct. 235     analyst violated confrontation clause of the Sixth Amendment)." (240-241.)
                       "Even though the United States Supreme Court has held unconstitutional the admission of forensic science certificates as prima facie
                       evidence of the primary facts stated therein, see Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531-2532, (2009), we conclude
                       that the error in admitting the drug certificates 'did not influence the [fact finder], or had but very slight effect,' that is, that it was harmless
Commonwealth v.        beyond a reasonable doubt.' Commonwealth v. Diaz, 453 Mass. 266, 275 (2009), quoting from Commonwealth v. Gilday, 382 Mass.
Marin (2009) 2009      166 (1980). At trial, the defendant gave the undercover officer his name and address, indicated that the item sold was cocaine,
Mass. App. Unpub.      indicated that the officer could 'meet him again,' and contested the identification made by the officer but not that the substance sold was
519                    cocaine. (Citations.)" (7.)

                       "We decline to consider on direct appeal the defendant's claim that his trial counsel was ineffective for failing to raise a constitutional
Commonwealth v.        challenge to the admission of certificates of analysis of the crack cocaine. (Citation.) Though Melendez-Diaz v. Massachusetts, 129 S.
Bultumer (2009) 2009   Ct. 2527 (U.S. 2009), decided on June 25, 2009, recently held that admission of such evidence without live testimony by the analyst
Mass. App. Unpub.      violates the confrontation clause of the Sixth Amendment to the United States Constitution, we cannot resolve, on the basis of the
548                    present record, the defendant's claim for ineffective assistance of counsel based on the admission of the drug certificates at trial." (5-6.)
                       "We note that on November 10, 2008, the United States Supreme Court heard oral argument in Melendez-Diaz v. Massachusetts, 129
Commonwealth v.        S. Ct. 2527 regarding whether admission of forensic science certificates as prima facie evidence violates the right to confrontation set
Brisbon (2009) 2009    forth in Crawford v. Washington, 541 U.S. 36 (2004). (Citation.) Should the Melendez-Diaz decision establish a new rule regarding the
Mass. App. Unpub.      applicability of the confrontation clause to the introduction of a drug analysis certificate, the defendant's claim is preserved, and he may
772                    pursue appropriate postconviction relief in the trial court." (5-6.)
Citation              Court               Date       Published?   Summary              Evidence                 Status of Case




Commonwealth v.
Torres (2009) 2009   Massachusetts        Feb. 12,                Appeal from drug                              conviction affirmed; any error
Mass. App. Unpub. 61 Court of Appeals     2009       N            conviction           drug certificate         is harmless
                                                                                                                remanded for consideration of
                                                                                                                Melendez-Diaz issue;
People v. Raby (2009) Michigan Supreme                            Appeal from murder                            subsequent opinion not yet
775 N.W.2d 144        Court            Dec. 9, 2009 Y             convictions          autopsy report           published
                                                                                       testimony by doctor      remanded for consideration of
People v. Dendel                                                                       regarding toxicology     Melendez-Diaz issue;
(2009) 2009 Mich.     Michigan Supreme                            Appeal from murder   report (not written by   subsequent opinion not yet
LEXIS 2354            Court            Oct. 7, 2009 Y             conviction           him)                     published
                                                                                                                remanded for consideration of
                                                                                                                Melendez-Diaz issue;
                                                                                       autopsy report (admitted subsequent opinion at People
                                                                                       through testimony of     v. Lewis (2010) 2010 Mich.
People v. Lewis (2009) Michigan Supreme Sept. 23,                 Appeal from murder   doctor who did not       App. LEXIS 42 (see row 261,
772 N.W.2d 47          Court            2009         Y            conviction           prepare report)          below)

                                                                                                                application to appeal is
                                                                                                                denied; Appellate Court's
                                                                                                                reversal of conviction, due to
People v. Horton     Michigan Supreme Sept. 23,                   Appeal from murder                            confrontation clause issues
(2009) 772 N.W.2d 46 Court            2009           Y            conviction           blood and DNA reports    with DNA report, stands




                                                                                       autopsy report (admitted
People v. Lewis (2010)                                                                 through testimony of     conviction affirmed; Melendez-
2010 Mich. App. LEXIS Michigan Court of   Jan. 12,                Appeal from murder   doctor who did not       Diaz not applicable; any error
42                     Appeals            2010       N            conviction           prepare report)          is harmless
Citation                Discussion

                     "On November 10, 2008, the United States Supreme Court heard oral argument in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,
                     which poses the question whether the admission of forensic science certificates, as prima facie evidence of the primary facts stated
                     therein, runs afoul of Crawford v. Washington, 541 U.S. 36. (Citation.) Even if the Supreme Court decides Melendez-Diaz favorably to
                     the defendant's position, the admission of the drug certificates here did not create a substantial risk of a miscarriage of justice where the
                     defendant did not base his defense on the theory that the substances recovered were improperly weighed or improperly identified as
Commonwealth v.      cocaine . . . . We reject the defendant's contention that, although he did not object to the admission of the drug certificates, we should
Torres (2009) 2009   treat this claim as preserved under the so-called clairvoyance exception. The clairvoyance exception does not apply because trial in this
Mass. App. Unpub. 61 case occurred after the decision in Crawford, supra. (Citation.)" (8-9, fn. 7.)

                      "in lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals and REMAND this case to the Court of
People v. Raby (2009) Appeals for reconsideration of the defendant's Confrontation Clause issue in light of Melendez-Diaz v Massachusetts, U.S. ; 129 S
775 N.W.2d 144        Ct 2527; 174 L Ed 2d 314 (2009)."

People v. Dendel
(2009) 2009 Mich.       "n lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals and we REMAND this case to the Court of
LEXIS 2354              Appeals for reconsideration of the defendant's Confrontation Clause and hearsay issues in light of Melendez-Diaz. "



                       "in lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals and we REMAND this case to the Court of
People v. Lewis (2009) Appeals for reconsideration of the defendant's Confrontation Clause, sufficiency of the evidence, and ineffective assistance issues in
772 N.W.2d 47          light of Melendez-Diaz."
                       "by order of March 26, 2008, the application for leave to appeal was held in abeyance pending the decision in Melendez-Diaz v
                       Massachusetts. On order of the Court, the case having been decided on June 25, 2009, we VACATE our December 20, 2007 order
                       granting leave to appeal. The application is DENIED, because we are no longer persuaded that the questions presented should be
                       reviewed by this Court. " This leaves intact the Court of Appeal's opinion whch reversed the defendant's conviction because it found a
People v. Horton       confrontation clause violation when the results of DNA and blood testing were admitted into evidence through the testimony of a doctor
(2009) 772 N.W.2d 46 who did not perform the tests.
                       "Applying Melendez-Diaz to the instant case, we again conclude that defendant has failed to establish plain error in the admission of the
                       report. The Supreme Court's determination that the forensic analysts' certificates in Melendez-Diaz were testimonial was based on
                       characteristics that are not present here. Unlike the certificates, which were prepared for the 'sole purpose' of providing 'prima facie
                       evidence' against the defendant at trial, Melendez-Diaz, 129 S Ct at 2532, the autopsy report was prepared pursuant to a duty imposed
                       by statute. (Citations.) . . . Furthermore, unlike the certificates in Melendez-Diaz, Dr. Schmidt formed independent opinions based on
                       objective information in the autopsy report and his opinions were subject to cross-examination. (Citations.) Because the autopsy report
                       was not prepared primarily for use in a later criminal prosecution and defendant cross-examined Dr. Schmidt's independent opinions
People v. Lewis (2010) based on the autopsy report, the report is not testimonial evidence and defendant was not denied the right to be confronted by the two
2010 Mich. App. LEXIS nontestifying medical examiners who prepared it. (Citations.) In addition, as we previously concluded, the admission of the report
42                     through the testimony of Dr. Schmidt was not outcome determinative: 'There is no dispute that a crime was committed, and the autopsy
Citation               Court               Date         Published?   Summary                  Evidence                 Status of Case




                                                                                              autopsy report (admitted
People v. King (2010)                                                                         through testimony of     conviction affirmed; Melendez-
2010 Mich. App. LEXIS Michigan Court of    Jan. 12,                  Appeal from murder       doctor who did not       Diaz not applicable; any error
41                    Appeals              2010         N            conviction               prepare report)          is harmless




                                                                                              1) testimony from child's
                                                                                              mother regarding child's
People v. McNeeley                                                                            statement, 2) computer
(2010) 2010 Mich. App. Michigan Court of   Jan. 12,                  Appeal from child porn   "hits" on child           conviction affirmed; Melendez-
LEXIS 39               Appeals             2010         N            related convictions      pornography               Diaz not applicable
                                                                                                                        Conviction affirmed; any error
                                                                                                                        is harmless. Leave to appeal
                                                                                                                        denied by: People v. Nelson,
                                                                                                                        2010 Mich. LEXIS 173 (Mich.,
                                                                                                                        Jan. 29, 2010); People v.
                                                                                                                        Williams, 2010 Mich. LEXIS
                                                                                                                        144 (Mich., Jan. 29, 2010);
                                                                                                                        People v. Paiva, 2010 Mich.
                                                                                                                        LEXIS 148 (Mich., Jan. 29,
People v. Nelson                                                                                                        2010); People v. Parker, 2010
(2009) 2009 Mich. App. Michigan Court of                             Appeal from murder                                 Mich. LEXIS 230 (Mich., Jan.
LEXIS 1626             Appeals             Jul. 30, 2009 N           convictions              Autopsy report            29, 2010)
Citation               Discussion
                       "Since Melendez-Diaz was decided, other jurisdictions have applied it to bar the admission of autopsy reports where the defendant is
                       not afforded an opportunity to cross-examine the preparer of the report. See State v Locklear, 363 NC 438 (2009) (holding that
                       references in Melendez-Diaz to autopsy examinations extends that decision to autopsy reports, but concluding that the error in admitting
                       the opinion testimony of a nontestifying pathologist was harmless beyond a reasonable doubt); Commonwealth v Avila, 454 Mass 744,
                       761-763 (2009) (while a medical examiner who did not conduct the autopsy could testify as an expert witness at trial about his own
                       opinions, he could not testify regarding any findings made by the examiner who conducted the autopsy and prepared the report because
                       the report was inadmissible hearsay and admission of those findings violates the Confrontation Clause); Wood v State, SW2d (Tex
People v. King (2010) App, decided October 7, 2009) (autopsy report was testimonial in nature and the use of the report through a witness other than the
2010 Mich. App. LEXIS author of the report violated the defendant's right of confrontation, but the error was harmless beyond a reasonable doubt). Despite the
41                     foregoing, we conclude that reversal is not required in this case because no opinions or conclusions of the preparer of the autopsy
                       "[Summary of Melendez-Diaz] Here, while KG testified that her daughter told her something that made her, KG, contact the police, KG
                       did not testify as to what the statement was. Therefore, there was nothing in that testimony to confront. Moreover, KG's daughter
                       testified live at trial, and therefore defendant had every opportunity to confront her. Therefore, a confrontation clause objection by
                       defense counsel to this testimony by KG would have been totally frivolous. . . . The national database alerts, indicating that two of the
                       images seized from defendant's hardware were known child pornography, were produced under circumstances that would lead an
                       objective witness reasonably to believe that the alerts would be available for use at a later trial. This is because the whole purpose of the
                       national database is presumably to detect crime and to support later prosecutions. However, explicit in the definition of 'testimonial
People v. McNeeley     evidence' is that it must come from a 'witness,' i.e. a natural person (who can be confronted and cross-examined). Melendez-Diaz,
(2010) 2010 Mich. App. supra at 2531. And defendant cites no authority, nor does any exist, for the notion that, when evidence of this kind is used, anyone other
LEXIS 39               than the detective who used the database must testify at trial. (Footnote 1: We reject the notion that a computer database's action of




                       "[Summary of Melendez-Diaz] While Chandler's autopsy report as utilized here may be subject to arguments both for and against
People v. Nelson       application of the teachings of Crawford and its progeny, we need not make that determination. If we assume the admission into
(2009) 2009 Mich. App. evidence in this trial of the autopsy report as a Crawford violation, such error is subject to harmless error analysis. . . . Defendants, at
LEXIS 1626             trial, neither contested that Chandler was raped and killed nor that the manner of her death was by strangulation." (55-56.)
Citation               Court               Date         Published?   Summary                      Evidence            Status of Case




People v. Payne (2009) Michigan Court of                             Appeal from criminal sexual                      conviction reversed; Melendez-
285 Mich. App. 181     Appeals             Jul. 28, 2009 Y           conduct convictions         DNA report           Diaz applies




                                                                                                                      Conviction affirmed; no plain
                                                                                                                      error shown. Leave to appeal
People v. Frey (2009)                                                                                                 denied by People v. Frey,
2009 Mich. App. LEXIS Michigan Court of                              Appeal from criminal sexual                      2009 Mich. LEXIS 2910
1601                  Appeals              Jul. 28, 2009 N           conduct convictions         DNA report           (Mich., Dec. 21, 2009)

Horarik v. Comm'r of
Pub. Safety (2009)                                                   Appeal from revocation of                        judgment affirmed; Melendez-
2009 Minn. Appp.       Minnesota Court of Aug. 18,                   driver's license after DUI                       Diaz not applicable in civil
Unpub. LEXIS 907       Appeals            2009          N            arrest                       urinalysis report   cases




                                                                                                                      judgment affirmed; Melendez-
                                                                                                                      Diaz not violated. rehearing
                                                                                                                      denied by Deeds v. State,
Deeds v. State (2009) Mississippi                                                                                     2010 Miss. LEXIS 109 (Miss.,
2009 Miss. LEXIS 588 Supreme Court         Dec. 3, 2009 Y            Appeal from DUI conviction blood test report     Mar. 4, 2010)
Citation               Discussion
                       "In People v Lonsby, 268 Mich App 375, 392-393 (2005), now-Chief Judge Saad concluded that a laboratory report prepared by a
                       nontestifying analyst was testimonial hearsay within the meaning of Crawford. . . . We acknowledge that because the other members of
                       the Lonsby panel concurred in the result only, Lonsby is not binding precedent. (Citation.) However, Judge Saad's well-reasoned opinion
                       in Lonsby is fully consistent with the United States Supreme Court's recent decision in Melendez-Diaz v Massachusetts,129 S Ct 2527
                       (2009). . . . Because Judge Saad's opinion in Lonsby fully comports with the recent decision in Melendez-Diaz, we adopt the reasoning
                       of Lonsby as our own. Similar to the facts of Lonsby and Melendez-Diaz, in the instant case, DNA testing was conducted and it resulted
                       in the generation of laboratory reports that were used against defendant at trial. Just as the nontestifying laboratory analysts in Melendez-
                       Diaz knew that their affidavits would later be used in criminal proceedings to establish that the defendant in that case had possessed
People v. Payne (2009) cocaine, it is clear to us that the nontestifying analyst who generated the reports in the present case must have known that the purpose
285 Mich. App. 181     was to ultimately establish the perpetrator's identity through DNA evidence. Although the witnesses who actually testified concerning the
                       "[Summary of Melendez-Diaz] In Lonsby, Judge Saad concluded that a laboratory report and corresponding notes prepared by an out-of-
                       court scientist was testimonial hearsay within the meaning of Crawford. Lonsby, supra at 392-393. . . .
                       Morgan testified that defendant's DNA matched the DNA found on the victim's underwear. However, another forensic analyst, who did
                       not testify at defendant's trial, performed the actual DNA testing. Nonetheless, Morgan testified that she 'was present with -- while she
                       [the nontestifying forensic analyst] was analyzing -- while she took the evidence.' Morgan also testified that she reviewed and analyzed
                       the data taken by the nontestifying forensic analyst, and that she and the nontestifying forensic analyst reached the conclusion that the
                       DNA found on the victim's underwear matched the DNA of defendant. Accordingly, it appears that Morgan had firsthand knowledge of
People v. Frey (2009) the methods used by the nontestifying forensic analyst and that Morgan testified to her own conclusions, rather than conclusions
2009 Mich. App. LEXIS reached solely by the nontestifying analyst. Thus, unlike the defendant in Lonsby, supra, defendant was able to challenge the accuracy
1601                   of the methodology used and the ultimate conclusion reached by Morgan and the nontestifying forensic analysis. Under these
                       "Horarik is correct that a laboratory report prepared by the BCA to be offered at a criminal trial against a defendant meets the Crawford
Horarik v. Comm'r of   definition of a testimonial statement. Melendez-Diaz v. Massachusetts; (Citation). And, a criminal defendant's failure to meet section
Pub. Safety (2009)     634.15's demand-and-notice provision is not, by itself, a conclusive waiver of the confrontation right. (Citation.) The significant
2009 Minn. Appp.       distinction, however, is that implied-consent proceedings, unlike the criminal proceedings governed by the Crawford rule, are civil in
Unpub. LEXIS 907       nature. " (10.)
                       "Deeds also claims that, because the State never identified the person who drew his blood, and because he was consequently unable to
                       cross-examine that individual, his Sixth Amendment right to confront witnesses was violated. . . . Officer Gibbs testified that he
                       personally observed the attending nurse draw blood from Deeds and label the sample and that he then took the sample from the nurse.
                       Subsequently, the blood sample was delivered to the Mississippi Crime Laboratory and tested by J.C. Smiley. Both Officer Gibbs and
                       Smiley testified at trial and were subject to cross-examination. Neither the procedure used to draw Deeds's blood, nor the physical blood
                       specimen itself, are statements, nor do they constitute nonverbal conduct intended as an assertion. Contrary to the defendant's claims,
                       the unidentified nurse was not a witness against Deeds. . . . [T]he Melendez-Diaz Court was clear that it does not require 'that anyone
                       whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must
Deeds v. State (2009) appear in person or as part of the prosecution's case.' 129 S. Ct. at 2532 n.1. . . . We find that the admission of the results of the blood
2009 Miss. LEXIS 588 test did not violate Deeds's Sixth Amendment right to confront witnesses testifying against him." (17-19.)
Citation                 Court                Date         Published?   Summary                    Evidence                  Status of Case




                                                                                                   psychological report      rehearing denied by Wilson v.
Wilson v. State (2009) Mississippi            Sept. 24,                 Appeal from murder and     (used by prosecution to   State, 2009 Miss. LEXIS 597
21 So. 3d 572          Supreme Court          2009         Y            child abuse capital case   cross defense witness)    (Miss., Dec. 3, 2009)



                                                                                                                               Conviction affirmed; no
Pilgrim v. State (2009) Mississippi Court of Oct. 13,                   Appeal from drug           fingerprint report (finding discussion of Melendez-Diaz,
19 So. 3d 148           Appeals              2009          Y            convictions                negative result)            any hearsay error is harmless

State v. Wood (2010)
2010 Mont. Dist. LEXIS                       Jan. 21,                   Motions to Suppress                                  motion denied; Melendez-Diaz
17                       Montana Trial Court 2010          Y            Evidence                   breathalyzer reports      issue is moot
State v. Stevens
(2009) 2009 N.J.         New Jersey
Super. Unpub. LEXIS      Superior Court                                 Appeal from drug                                     convictions affirmed;
3196                     Appellate Division   Jul. 22, 2009 N           convictions                map                       Melendez-Diaz not applicable




                                                                                                                             conviction affirmed; Melendez-
State v. Aragon (2010) New Mexico             Feb. 12,                  Appeal from drug                                     Diaz applies but error is
2010 NMSC 8            Supreme Court          2010         Y            convictions                drug certificate          harmless
Citation                  Discussion
                          "[A]lthough the prosecutor unquestionably was using Dr. Lott's letter in his cross-examination of Stembridge, there is no indication in the
                          record that Stembridge knew the source of the information which the prosecutor was using to cross-examine her concerning her
                          obvious lack of knowledge as to Wilson's drug and alcohol use. There was no 'battle of opinions' between Dr. Lott and Stembridge such
                          that Dr. Lott would have to be called as a witness to avoid violation of the Confrontation Clause. . . . Armed with information contained in
                          Dr. Lott's letter, the prosecutor conducted a garden-variety cross-examination of Stembridge to determine how well she really knew (or
                          conversely, how well she did not know) Wilson. No credibility battle was created between Lott and Stembridge. For the reasons stated,
                          we unhesitatingly find that there was no violation of the Sixth Amendment's Confrontation Clause." (587.) "In Melendez-Diaz, the United
                          States Supreme Court held that the trial court's admitting certificates of analysis sworn by analysts at a state laboratory without requiring
Wilson v. State (2009)    in-court testimony by analysts violated the defendant's Sixth Amendment right to confront the witnesses against him. (Footnote.)
21 So. 3d 572             However, as already discussed, today's case does not involve a violation of the Confrontation Clause. We thus distinguish Melendez-
                          No discussion of Melendez-Diaz by the majority. Any error regarding the fingerprint report is harmless because the report was
                          exculpatory. Carlton, J., Dissenting: "The United States Supreme Court recently held in Melendez-Diaz v. Massachusetts, 129 S. Ct.
                          2527, 2532, 174 L. Ed. 2d 314 (2009) that certificates of analysis indicating that seized evidence contained cocaine were testimonial
                          statements. . . . Therefore, in light of Rule 9.04 and the Supreme Court's holding in Melendez-Diaz, I would find the contents of the
Pilgrim v. State (2009)   report were inadmissible without the fingerprint analyst from the crime lab present as a witness. The trial judge abused his discretion in
19 So. 3d 148             allowing Agent Peterson to testify regarding the unauthenticated contents of the lab report." (160.)
                          "Wood contends the foundation for establishing that the Intoxilyzer was properly certified and in proper working order must be done
State v. Wood (2010)      through live testimony rather than by certificate or affidavit. In support of this argument, he cites the recent United States Supreme Court
2010 Mont. Dist. LEXIS    case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) . . . . [H]owever, because Wood refused to take the Intoxilyzer 8000
17                        test and there are no test results to introduce into evidence, this issue is moot." (30-31.)
State v. Stevens          "We discern nothing in the United States Supreme Court's recent opinion in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009),
(2009) 2009 N.J.          that alters the confrontation analysis. . . . The 500-foot map at issue here is distinguishable because: (1) it was prepared as a document
Super. Unpub. LEXIS       for generic use, not solely for defendant's case, and (2) defense counsel was afforded a chance to cross-examine a witness who
3196                      supervised its preparation." (33-34, fn. 5.)
                          Court rejects contention that Melendez-Diaz only applies to affidavits: "The fact that the report at issue in the present case is not sworn
                          to by the forensic chemist who prepared it, therefore, does not insulate it against Defendant's right of confrontation. It would be
                          nonsensical to admit an out-of-court statement that proves an element of an offense simply because it was not a statement under oath
                          when a sworn statement proving the same element would be inadmissible." (12.) Court also states that the reliability test has been
                          rejected by Crawford and Melendez-Diaz: "Following Melendez-Diaz and our opinion in Bullcoming, however, we now hold that such
                          forensic reports are testimonial in nature. Therefore, any consideration of their reliability is irrelevant to a determination of confrontation
                          requirements. That Young considered himself objective and simply tried to get to the bottom of the matter have no bearing on the
                          analysis." (14.) Rejects contention that the report is a routine business record: "We reject this contention because Young's testimony
State v. Aragon (2010)    belies the argument that the reports are not prepared as testimony and Melendez-Diaz refutes such an argument." (15.) "[T]he State's
2010 NMSC 8               argument that the reports are admissible because they are routine under Rules 11-803(F) and (H) is answered by Melendez-Diaz and
Citation                Court              Date       Published?   Summary                    Evidence               Status of Case




State v. Bullcoming     New Mexico         Feb. 12,                                                                  conviction affirmed; Melendez-
(2010) 2010 NMSC 7      Supreme Court      2010       Y            Appeal of DUI conviction   blood alcohol report   Diaz not violated




People v. Brown (2009) New York Court of   Nov. 19,                Appeal from sodomy and                            conviction affirmed; Melendez-
13 N.Y.3d 332          Appeals             2009       Y            assault convictions        DNA report             Diaz not applicable




People v. Dail (2010)
N.Y. App. Div. LEXIS    New York Supreme Jan. 19,                  Appeal from burglary                              convictions affirmed;
517                     Court App. Div.  2010         Y            conviction                 DNA report             Melendez-Diaz not applicable


People v. Palmer       New York Supreme Sept. 29,                  Appeal from burglary                              convictions affirmed;
(2009) 65 A.D. 3d 1389 Court App. Div.  2009          Y            conviction                 DNA report             Melendez-Diaz not applicable
Citation               Discussion
                       "Melendez-Diaz throws into doubt our assessment in Dedman that blood alcohol reports as public records are inherently immune from
                       governmental abuse. First, Melendez-Diaz clarified that 'analysts' certificates--like police reports generated by law enforcement officials--
                       do not qualify as business or public records' because they are "calculated for use essentially in the court, not in the business." Id. at ,
                       129 S. Ct. at 2538 (. . .). . . . Second, Melendez-Diaz made clear that the same concerns of governmental abuse which exist in the
                       production of evidence by law enforcement exist in the production of forensic evidence. . . . For these reasons, we conclude that
                       Dedman's determination that blood alcohol tests are non-testimonial does not comport with the Supreme Court's ruling in Melendez-
                       Diaz, and Dedman is overruled. . . .
                       Contrary to the State's argument, [Melendez-Diaz applies even though the test results were not in the form of an affidavit]. [I]n the
State v. Bullcoming    present case, Exhibit 1 was offered to prove that Defendant had a BAC of 0.21 gms/100ml. As in Melendez-Diaz, Exhibit 1 was
(2010) 2010 NMSC 7 'functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.' Id. (. . .). Therefore, Exhibit 1
                       "Here, unlike Melendez-Diaz, the People called the forensic biologist who conducted the actual analysis at issue, linking defendant's
                       DNA to the profile found in the victim's rape kit. She testified that she had personally examined the Bode file; she interpreted the profile
                       of the data represented in the machine-generated graphs; and she made the critical determination linking defendant to this crime. She
                       also stated that she was familiar with the procedures and protocols used by Bode, and defendant could have challenged such claim on
                       cross-examination. The Bode report, furthermore, was not 'testimonial' under such circumstances because it consisted of merely
                       machine-generated graphs, charts and numerical data. There were no conclusions, interpretations or comparisons apparent in the
                       report since the technicians' use of the typing machine would not have entailed any such subjective analysis. . . . As the Court made
                       clear in Melendez-Diaz, not everyone 'whose testimony may be relevant in establishing the chain of custody, authenticity of the sample,
People v. Brown (2009) or accuracy of the testing device must be called on the prosecution's case' (129 S Ct at 2532 n 1). . . . Finally, we see no merit to
13 N.Y.3d 332          defendant's contention that the results of the Bode procedures could have been tainted by a pro-law enforcement bias to inculpate
                       "[T]he defendant's Sixth Amendment right to confront his accusers was not violated by the admission of lab reports generated by
                       employees of the Nassau County Medical Examiner's Office . . . , who recorded the results of DNA tests performed on the defendant's
                       saliva and items recovered from the burglarized residences. A foundation for the admission of these reports as business records was
                       established through the testimony of a forensic geneticist employed by the Medical Examiner's Office (Citations). Moreover, business
                       records 'are generally admissible absent confrontation . . . because--having been created for the administration of an entity's affairs and
                       not for the purpose of establishing or proving some fact at trial--they are not testimonial' (Citations). Here, the subject lab reports were
                       prepared in the ordinary course of business of the Medical Examiner's Office, a scientific laboratory independent from the Nassau
People v. Dail (2010) County District Attorney and the Nassau County Police Department (see People v Brown, 13 NY3d at 341). Moreover, the reports
N.Y. App. Div. LEXIS consisted of contemporaneously recorded objective facts which did not, standing alone, link the defendant to the crime (Citations).
517                    Rather, the critical determination linking the defendant to the crimes was made by the forensic geneticist who testified, based upon her
                       "Contrary to the defendant's contention, the admission into evidence of a laboratory report containing DNA profile data prepared by a
                       laboratory analyst who did not testify at trial did not violate his Sixth Amendment right to confrontation under Crawford v Washington
People v. Palmer       (541 U.S. 36), as the report did not constitute a testimonial statement (see People v Rawlins, 10 NY3d 136, 159-160, cert denied 129 S
(2009) 65 A.D. 3d 1389 Ct 2856 [June 29, 2009]; cf. Melendez-Diaz v Massachusetts, 129 S Ct 2527 [June 25, 2009])." (1.)
Citation                Court            Date        Published?   Summary                          Evidence                    Status of Case




                                                                                                   calibration of the breath
People v. Di Bari                                                 Motion for trial order of        test machine and
(2010) 2010 N.Y. Misc. New York Trial                             dismissal for defendant          analysis of breath test
LEXIS 238              Court             Feb. 8, 2010 N           charged with a DUI               simulator solution          motion for dismissal denied;




                                                                  Motion in limine regarding
                                                                  calibration of the breath test   calibration of the breath
People v. Harvey                                                  machine and analysis of          test machine and
(2010) N.Y. Misc.       New York Trial                            breath test simulator            analysis of breath test     motion denied; evidence
LEXIS 195               Court            Feb. 4, 2010 N           solution.                        simulator solution          admitted in trial
                                                                  Motion for dismissal of
Matter of Christopher T                                           juvenile delinquency
(2010) 2010 N.Y. Misc. New York Family   Jan. 21,                 petition for assault and                                     petition dismissed; Melendez-
LEXIS 102               Cout             2010        N            attempted abortion               911 transcript              Diaz not applicable




                                                                                                   calibration of the breath
People v. Carreira                                                                                 test machine and
(2010) 2010 N.Y. Slip   New York City    Jan. 12,                 Motion to preclude               analysis of breath test     motion to preclude granted;
Op 20014                Court            2010        Y            evidence in DUI trial            simulator solution          Melendez-Diaz applicable
Citation                Discussion
                        "This Court declines to extend Crawford and Melendez-Diaz. The challenged business records in the case at bar are similar to those
                        held admissible as business records in Brown, Kelly, Forstell, Lebrecht, Stevenson, Brooks, Kanhai, and Green v. DeMarco, supra. The
                        instant records are qualitatively dissimilar from the report at issue in Melendez-Diaz, where the author of the challenged test did not
                        appear to testify and be cross-examined, and the test provided evidence on the ultimate question of defendant's guilt. First, in this case,
                        the calibration and simulator solution records were prepared not in anticipation of the prosecution of this particular defendant, but as
                        relating to the regular maintenance of this particular Alcotest machine and chemical samples. See, e.g., Brooks, supra. Melendez-Diaz'
                        specific limitation in Footnote 1 recognizes that it would be reductio ad absurdum to require live testimony from every witness who has
People v. Di Bari       laid hands on a case. Underlying records of breath test instruments, like those here, are attenuated from the direct fact of defendant's
(2010) 2010 N.Y. Misc. intoxication and guilt of this charge. They do not prove or even show what his blood alcohol level was at the time of his arrest. Second,
LEXIS 238               Trooper Kalarchian, the arresting officer, is a New York State Police certified breath test operator who actually conducted the blood
                        "Now comes a 4-1-4 decision in Melendez-Diaz (supra) and its prohibition of the use of an analyst's certificate to convict in a drug
                        possession case. . . . But, as this court asked in Krueger (supra), do we need the technicians who calibrated the drug testing machine or
                        microscope which the chemist used to testify? Melendez-Diaz does not shed any more light on a definition of testimonial unless you
                        incorporate the concurring opinion of Justice Thomas whose 5th vote makes the majority, the majority. He limits extrajudicial statements
                        to 'formalize testimonial materials such as affidavits, depositions, prior testimony or confessions.' (p 2543). Melendez-Diaz does reaffirm
                        the Supreme Court's position regarding business records. 'As we stated in Crawford most of the hearsay exceptions cover statements
                        that by their nature were not testimonial -- for example, business records or statements in furtherance of a conspiracy'.' 541 U.S. at 56,
People v. Harvey        124 S. Ct. 1354. 'Business and public records are generally admissible absent confrontation not because they qualify under an
(2010) N.Y. Misc.       exception to the hearsay rules, but because -- having been created for the administration of an entity's affairs and not testimonial.' (pp
LEXIS 195               2239-2540). Justice Scalia specifically states to the dissent that 'we do not hold, and it is not the case, that anyone whose testimony
                        "Moreover, because the information conveyed in the course of the telephone call to the police 911 operator relates to the investigation of
Matter of Christopher T criminal activity by law enforcement, the information conveyed by the caller does not constitute a testimonial statement which would be
(2010) 2010 N.Y. Misc. inadmissible under the Confrontation Clause (see, citations; Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531-2532 [2009];
LEXIS 102               citation)." (11, fn. 2.)
                        "For reasons discussed below, the Court finds that both the simulator solution and calibration records are testimonial for Sixth
                        Amendment purposes and therefore inadmissable absent live testimony by those who prepared them. First, the calibration certification
                        is clearly testimonial pursuant to Melendez-Diaz because it is 'quite plainly' an affidavit like the documents at issue there: [quoting
                        Melendez-Diaz]. Additionally, both the calibration and solution testing records are clearly 'made under circumstances which would lead
                        an objective witness reasonably to believe that the statement would be available for use later at trial' and, as such, are testimonial.
                        (Citations.) (Footnote 1: The Melendez-Diaz majority excruciatingly avoids answering the question of whether or not its holding
                        specifically covers calibration and testing records; instead, it winks at the issue: . . . However, given Crawford's definition of "testimonial"
                        statements and other holdings in Melendez-Diaz (discussed infra), this Court is comfortable extending Confrontation Clause protections
People v. Carreira      to the documents in question.) The Court's decision contradicts most other New York courts which have considered this issue. They
(2010) 2010 N.Y. Slip have found both calibration and solution records non-testimonial for Confrontation Clause purposes. (Citations.) The rationale for
Op 20014                denying the records testimonial status is threefold. First, they are nontestimonial because they are not prepared specifically for use in
Citation              Court               Date       Published?   Summary                       Evidence                     Status of Case




                                                                                                calibration of the breath
People v. Kelly (2009)                                                                          test machine and
2009 N.Y. Misc. LEXIS New York Criminal Dec. 22,                  Motion to set aside verdict   analysis of breath test      motion denied; Melendez-Diaz
3527                   Court            2009         N            for DUIcases                  simulator solution           not applicable



People v. Heyanka                                                                               certificate of analysis of
(2009) NY Slip Op     New York District   Aug. 19,                Decision on whether to        breath test simulator        Exhibits removed from trial;
29379                 Court               2009       Y            admit evidence                solution                     Melendez-Diaz applies



                                                                                                                             Conviction affirmed; Melendez-
                                                                                                                             Diaz applies but error is
                                                                                                                             harmless. Motion denied by
                                                                                                                             State v. Locklear, 363 N.C.
                                                                                                                             660, 684 S.E.2d 439, 2009
State v. Locklear     North Carolina      Aug. 28,                Appeal from capital murder                                 N.C. LEXIS 872 (N.C., Sept.
(2009) 363 N.C. 438   Supreme Court       2009       Y            conviction                 autopsy report                  9, 2009)

                                                                  Appeal from arson and                                      Remanded to appellate court
                                                                  insurance fraud convictions scientific evidence report     for consideration of the
State v. Sizemore     North Carolina      Aug. 27,                (State v. Sizemore, 2008    testified to by agent other    Melendez-Diaz issue. Final
(2009) 363 N.C. 578   Supreme Court       2009       N            N.C. App. LEXIS 1460 )      than the author                decision not yet published.
Citation               Discussion
                       "Unlike the laboratory analyses in Melendez-Diaz, the intoxilyzer calibration tests were not prepared specifically for the prosecution of
                       Mr. Kelly. . . . Records of calibration and maintenance must be maintained by the agency and must, pursuant to the rules of discovery
                       set forth in the Criminal Procedure Law, be turned over to the defense in prosecutions involving certain violations of the Vehicle and
                       Traffic Law. (Citation.) The tests at issue here, three of which predate Mr. Kelly's arrest, were not prepared for the prosecution of any
                       specific defendant. Rather, they were prepared in the regular course of equipment maintenance to ensure that the agency was in
                       compliance with the law. Contrary to defendant's contention, not all scientific reports bearing some relevance to the case are
                       testimonial. The calibration tests here do not accuse Mr. Kelly of a crime nor do they serve to prove an element of any of the charges
People v. Kelly (2009) against him. This differs significantly from scientific reports prepared specifically for the prosecution of a particular defendant. Indeed, in
2009 N.Y. Misc. LEXIS Melendez-Diaz itself, the Supreme Court noted that 'documents prepared in the regular course of equipment maintenance may well
3527                   qualify as nontestimonial records.' (Citations.) Like the DNA test results in Brown, intoxilyzer calibration tests are neutral scientific

                         "[Summary of Melendez-Diaz] The reports at issue in this trial similarly were prepared with the reasonable expectation that they would
                         be used in criminal prosecutions. The reports are testimonial in nature, and their admission into evidence, in the absence of the
People v. Heyanka        technician or analyst who prepared them, violates the defendant's Sixth Amendment right to confrontation. In accordance with this
(2009) NY Slip Op        Court's ruling from the bench at the conclusion of the hearing, the exhibits shall be removed from evidence, subject to admission only if
29379                    the People produce the appropriate witness or witnesses who may be cross-examined by the defense." (2.)

                         "The State argues the autopsy report was not 'testimonial' and therefore, is not barred by the Confrontation Clause. However, the United
                         States Supreme Court squarely rejected this argument in the recent case of Melendez-Diaz v. Massachusetts,129 S. Ct. 2527, (2009). .
                         . . The Court specifically referenced autopsy examinations as one such kind of forensic analyses. See id. at 2536, n.5. Thus, when the
                         State seeks to introduce forensic analyses, '[a]bsent a showing that the analysts [are] unavailable to testify at trial and that petitioner had
                         a prior opportunity to cross-examine them' such evidence is inadmissible under Crawford. Id. at 2532; see also (citation). Here, the
                         State sought to introduce evidence of forensic analyses performed by a forensic pathologist and a forensic dentist who did not testify.
                         The State failed to show that either witness was unavailable to testify or that defendant had been given a prior opportunity to cross-
State v. Locklear        examine them. The admission of such evidence violated defendant's constitutional right to confront the witnesses against him, and the
(2009) 363 N.C. 438      trial court therefore erred in overruling defendant's objections." (452.)

                         "Allowed for the limited purpose of remanding to the Court of Appeals, for reconsideration in light of the United States Supreme Court's
                         decision in Melendez-Diaz v Massachusetts, 129 S. Ct. 2527 (2009), defendant's issue Number 3: (3) Whether the trial court violated
State v. Sizemore        the defendant's Confrontation Clause rights by admitting testimonial evidence where the defendant had not had a prior opportunity to
(2009) 363 N.C. 578      cross examine the witness?"
Citation               Court              Date        Published?   Summary              Evidence                  Status of Case




State v. Hough (2010)
2010 N.C. App. LEXIS North Carolina                                Appeal from drug                               conviction affirmed; Melendez-
373                   Court of Appeals    Mar. 2, 2010 Y           convictions          drug certificate          Diaz not violated.




State v. King (2010)
2010 N.C. App. LEXIS North Carolina       Feb. 16,                 Appeal from murder                             conviction affirmed; any error
295                  Court of Appeals     2010        N            conviction           autopsy report            is harmless


State v. Davis (2010)
2010 N.C. App. LEXIS North Carolina       Feb. 16,                 Appeal from drug                               conviction affirmed; Melendez-
270                   Court of Appeals    2010        Y            convictions          drug certificate          Diaz issue waived




State v. Conley (2010)
2010 N.C. App. LEXIS North Carolina       Jan. 19,                 Appeal from murder                             conviction affirmed; Melendez-
58                     Court of Appeals   2010        N            conviction           report on glass samples   Diaz applies but no plain error
Citation              Discussion
                      "At trial, defendant made only general objections during Alloway's testimony. Accordingly, defendant has not preserved these arguments
                      for apellate review. (Citation.) Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2541 (2009) ('The defendant always has the burden of
                      raising his Confrontation Clause objection[.]'); (Citations.) . . . (Footnote 1: Defendant argues that Melendez-Diaz created a new rule of
                      law and therefore his failure to object did not violate the Rules of Appellate Procedure. Defendant's argument is disingenuous at best.
                      The proper objection was pursuant to the Confrontation Clause, hardly a new rule of law.)" (6-7.) "Upon review of Alloway's testimony,
                      we conclude that her expert opinion was based on an independent review and confirmation of test results, unlike the situations
                      presented in Melendez-Diaz, Locklear, and Galindo. As noted in Mobley, '[w]ell-settled North Carolina case law allows an expert to
State v. Hough (2010) testify to his or her own conclusions based on the testing of others in the field.' Id. at , 684 S.E.2d at 511. The report at issue in this
2010 N.C. App. LEXIS case formed the basis of Alloway's expert opinion, but was not offered for the proof of the matter asserted and was not prima facie
373                   evidence that the substances recovered from the crime scene were, in fact, marijuana and cocaine. It is not our position that every 'peer

                     "This situation presents an interesting issue under Melendez-Diaz and Locklear: whether having one of the pathologists who prepared
                     the autopsy report present in the courtroom audience is sufficient to satisfy the requirement of 'availability' under the Confrontation
                     Clause. See Melendez-Diaz, 174 L. Ed. 2d at 323 (. . .); (Citation.) Here, we are unable to answer this question, because the autopsy
                     report is not contained in the record. Without the aid of the document in issue, it is not possible for this Court to determine which
                     pathologist conducted which portion of the autopsy. Thus, we cannot determine whether Dr. Lockmuller's presence in the courtroom
State v. King (2010) was sufficient to satisfy 'availability' as it applies to the Confrontation Clause of the Sixth Amendment, and accordingly we decline to
2010 N.C. App. LEXIS address this issue in this case. However, even assuming arguendo that the admission of Dr. Gilliland's testimony was error, defendant
295                  cannot show that its admission prejudiced his conviction thereby satisfying the requisites of plain error." (27-29.)

                       "As Defendant failed to object at trial to any of the aforementioned testimony, Defendant failed to preserve for appeal the argument that
State v. Davis (2010) the evidence was erroneously admitted. (Citation.) 'Moreover, because [D]efendant did not 'specifically and distinctly' allege plain error
2010 N.C. App. LEXIS as required by North Carolina Rule of Appellate Procedure 10(c)(4), [D]efendant is not entitled to plain error review of this issue.'
270                    (Citation.)" (14.) Also, court concludes that lay opinion by police officers that substance seized was cocaine is sufficient.
                       "The core of these cases [applying Melendez-Diaz to reports testified to by experts who did not write them] and our holding in Mobley
                       restate the overarching Sixth Amendment principle reiterated in Melendez-Diaz: the Confrontation Clause applies to all testimonial,
                       hearsay evidence offered at trial. (Citation.) Thus, if an expert is merely offering the opinion of another non-testifying expert via a
                       testimonial document, the Confrontation Clause is invoked, and the Crawford safeguard of peremptory cross-examination applies. If an
                       expert is presenting an independent analysis, subject to the rigors of cross-examination on the expert's own thoughts and conclusions,
                       then the Confrontation Clause is satisfied, and no constitutional error may be established on appeal. (Citation.) Applying this framework
                       to the case sub judice, we must employ a four-part inquiry under Melendez-Diaz and Mobley: (1) whether the document at issue is
State v. Conley (2010) testimonial; (2) if the document is testimonial, whether the declarant was unavailable at trial and defendant was given a prior opportunity
2010 N.C. App. LEXIS to cross-examine the declarant; (3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant,
58                     whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert's report or
Citation               Court               Date        Published?   Summary                      Evidence           Status of Case




State v. Steele (2010)
2010 N.C. App. LEXIS North Carolina                                                                                 conviction affirmed; Melendez-
38                     Court of Appeals    Jan. 5, 2010 Y           Appeal from drug charges     drug certificate   Diaz issue waived



                                                                                                                    Conviction affirmed; Melendez-
                                                                                                                    Diaz not violated. Review
                                                                                                                    denied by State v. Mobley,
State v. Mobley (2009) North Carolina                               Appeal from rape, burglary,                     2010 N.C. LEXIS 94 (N.C.,
684 S.E.2d 508         Court of Appeals    Nov. 3, 2009 Y           and robbery charges.        DNA report          Jan. 28, 2010)




                                                                                                                    conviction affirmed; Melendez-
State v. Galindo (2009) North Carolina     Oct. 20,                 Appeal from drug                                Diaz applies but error is
683 S.E.2d 785          Court of Appeals   2009        Y            convictions                  drug certificate   harmless
                                                                    Motion for reconsideration
                                                                    of State v. Crager (2009)                       Motion for reconsideration
State v. Crager (2009) Ohio Supreme        Nov. 18,                 123 Ohio St. 3d 1210                            denied by State v. Crager
123 Ohio St. 3d 1497 Court                 2009        N            (below)                      DNA report         (2010) 124 Ohio St. 3d 1446

                                                                    On remand from the United
                                                                    States Supreme Court.                           case remanded to trial court
State v. Crager (2009) Ohio Supreme        Sept. 17,                Appeal from murder                              for reconsideration in light of
123 Ohio St. 3d 1210 Court                 2009        Y            conviction.               DNA report            Melendez-Diaz
Citation                Discussion
                        "The United States Supreme Court has held, however, that '[t]he right to confrontation may . . . be waived, including by failure to object
                        to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.' Melendez-Diaz v.
                        Massachusetts, 174 L. Ed. 2d 314, 323 n.3 (2009). Regarding these procedural rules, '[i]n their simplest form, notice-and-demand
                        statutes require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which
                        the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at
                        trial. . . .' Id. at 331. 'It suffices to say that what [the Supreme Court] ha[s] referred to as the 'simplest form [of] notice-and-demand
                        statutes,' . . . is constitutional[.]' Id. at n.12.. . . Under Melendez-Diaz, 174 L. Ed. 2d at 331 n.12, because § 90-95(g) only 'require[s] the
State v. Steele (2010) prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial[]' and then 'the defendant is
2010 N.C. App. LEXIS given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial[,]' it
38                      constitutes the 'simplest form [of] notice-and-demand statutes[,]' which is constitutional. . . . There is no evidence that defendant
                        "Well-settled North Carolina case law allows an expert to testify to his or her own conclusions based on the testing of others in the field.
                        (Citation.). This Court has held that evidence offered as the basis of an expert's opinion is not being offered for the truth of the matter
                        asserted. (Citation.) . . . In Melendez-Diaz, the certificates at issue were being introduced not as the basis for any expert's opinion but
                        as prima facie evidence that the substance was cocaine. Melendez-Diaz. Thus, such evidence would implicate the Confrontation
                        Clause. By contrast, in this case, the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an
                        expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under
State v. Mobley (2009) North Carolina case law. Therefore, we hold Ms. Moeykens's testimony does not violate the Confrontation Clause even in light of
684 S.E.2d 508          Melendez-Diaz. These assignments of error are overruled." (511-512.)
                        "Defendant's sole argument on appeal is that the expert testimony by Aldridge, the crime lab supervisor, as to the weight of the cocaine
                        found at defendant's residence constituted impermissible hearsay and violated his right to confront an adverse witness under the Sixth
                        Amendment, as applied in Crawford v. Washington, 541 U.S. 36 (2004), and most recently in Melendez-Diaz v. Massachusetts, 129 S.
                        Ct. 2527 (2009). Defendant does not challenge Aldridge's testimony that the substances are, in fact, marijuana and cocaine. . . . Our
                        Supreme Court has recently held that under Melendez-Diaz, opinion testimony based on an autopsy report including forensic pathology
                        and dental analyses was "testimonial" in nature. State v. Locklear, 363 N.C. 438 (2009). The Locklear Court thus held that the
                        defendant's right to confrontation was violated by the admission of the expert testimony based on the pathologist's and dentist's reports
                        where the 'State failed to show that either witness was unavailable to testify or that defendant had been given a prior opportunity to
State v. Galindo (2009) cross-examine them.' Id. at 452, 681 S.E.2d at 305. The evidence in this case -- Aldridge's expert testimony based "solely" on the
683 S.E.2d 785          absent analyst's lab report -- is indistinguishable from the opinion testimony held to be unconstitutional in Locklear. Similarly, as the

                       "On motion for reconsideration. The parties are to brief the issue of the impact of Melendez-Diaz v. Massachusetts (2009), U.S. ,
State v. Crager (2009) 129 S.Ct. 2527, 174 L.Ed.2d 314, on this court's holding in paragraph two of the syllabus in State v. Crager, 116 Ohio St.3d 369, 2007
123 Ohio St. 3d 1497 Ohio 6840, 879 N.E.2d 745. "

                       "On June 29, 2009, the Supreme Court of the United States vacated that judgment and remanded the cause to this court for further
                       consideration in light of Melendez-Diaz v. Massachusetts. Because the trial court has not had an opportunity to address the admissibility
State v. Crager (2009) of the DNA evidence admitted at the trial in light of the holding in Melendez-Diaz v. Massachusetts, we sua sponte vacate the judgment
123 Ohio St. 3d 1210 of the trial court and remand the cause to the trial court for a new trial consistent with Melendez-Diaz v. Massachusetts."
Citation                Court           Date        Published?   Summary                  Evidence                 Status of Case




State v. Jackson        Ohio Court of                            Appeal from drug                                  Judgment affirmed; Melendez-
(2010) 2010 Ohio 820    Appeals         Mar. 5, 2010 Y           convictions              drug certificate         Diaz issue waived




                                                                                                                   judgment affirmed; Melendez-
State v. Lopez (2010)   Ohio Court of                            Appeal from murder and                            Diaz not applicable; any error
2010 Ohio 732           Appeals         Mar. 1, 2010 Y           rape convictions         DNA certificate          is harmless

                                                                                                                   judgment affirmed; Melendez-
                                                                                                                   Diaz applicable, but stipulation
State v. Brown (2010)   Ohio Court of   Feb. 25,                 Appeal from attempted                             was not ineffective assistance
2010 Ohio 661           Appeals         2010        Y            murder convictions       Gun residue report       of counsel




                                                                                          social worker's report
State v. Cappadonia     Ohio Court of   Feb. 16,                 Appeal from rape         containing statements by judgment affirmed; no plain
(2010) 2010 Ohio 494    Appeals         2010        Y            conviction               complaining witness      error
Citation                Discussion
                        "In light of the Supreme Court of Ohio's ruling in Pasqualone, and the Supreme Court of the United States ruling in Melendez-Diaz, both
                        of which were issued after our decision, we must vacate our earlier decision, and affirm the trial court's finding that Mr. Jackson waived
                        his right to confront the analyst who prepared the report because he did not comply with the procedures set forth in R.C. 2925.51."
                        (P14.) "[T]he relevant inquiry as to whether Mr. Jackson's right to confrontation has been violated is 'whether [h]e had an opportunity for
                        cross-examination.' Id. at P35. '[I]n other words, where a defendant chooses not to take advantage of the opportunity to cross-examine
                        a witness, the defendant has not been denied his constitutional right to confrontation.' Id. at P36. (Citations.) In Mr. Jackson's case, the
                        notarized report, which was signed by the lab technician, with valid notice of the prosecution's intent to use the report at trial, was sent
                        following the procedures of R.C. 2925.51. Mr. Jackson's attorney did not demand the testimony of the analyst who signed the report
State v. Jackson        within seven days from his receipt of the report pursuant to R.C. 2925.51(C). In fact, defense counsel did not object to the admission of
(2010) 2010 Ohio 820    the report until the close of the state's case-in-chief, and that objection rested on an improper foundation. That is, there was no true
                        "[W]e find Melendez-Diaz distinguishable in that the state did not read a report into the record or offer an affidavit in lieu of live
                        testimony. Instead, the state called Worst to testify regarding the procedures, process, logistics, and results of the DNA testing offered
                        as evidence against Lopez. Through the testimony, the jury was well-aware that Worst had not performed the original testing on the
                        samples and could therefore choose to assign whatever weight it chose to the evidence, just as the majority opinion in Melendez-Diaz
                        pointed out. We also note that in deciding Melendez-Diaz, the majority was concerned with the dangers of improper scientific testing. In
                        response to Massachusetts' (and the dissent's) argument that scientific testing is neutral and reliable, the majority noted several studies
                        that reported manipulation of test results and faulty procedures. The majority concluded therefore, 'confrontation is designed to weed
                        out not only the fraudulent analyst, but the incompetent one as well.' Melendez-Diaz at 2537. Lopez was able to cross-examine Worst
State v. Lopez (2010)   and was therefore given the chance to challenge the way the tests were performed and whether the results were reliable. Calling Worst
2010 Ohio 732           therefore satisfied the majority's stance regarding the ability of confrontation to weed out fraudulent test results. Cross-examining Worst

                        "The gun residue report clearly falls within the ambit of Melendez-Diaz. Thus, by stipulating to the report, Brown's counsel essentially
                        waived his confrontation rights. We assume for purposes of argument that Brown is correct that his trial counsel was ineffective for
State v. Brown (2010)   stipulating to gun residue report. We nonetheless find no 'reasonable probability' that having the lab analyst testify to the report would
2010 Ohio 661           have changed the outcome of the trial. (Citation.)" (P41-P43.)
                        "Although Crawford did not provide a comprehensive definition as to what constitutes a testimonial statement, it includes one made
                        'under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later
                        trial.' Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527, 2529. . . . Makoroff testified that the assessment portion of the report
                        was comprised of what the social worker concluded from the history that she received from V.P. . . . At the outset, we note that
                        appellant did not object when Makoroff read the contents of the assessment into evidence from the witness stand. Moreover, although
                        he objected to the admission of the assessment into evidence as a state exhibit, the objection was not based on the specific ground that
                        he now advances on appeal. . . . In this case, appellant's objection was based on hearsay grounds, and our review of the record
                        indicates that the trial court's comments in overruling his objection focused on whether the statements fell under the hearsay exception
State v. Cappadonia     for statements made for purposes of diagnosis and treatment. There is no indication that the court understood that appellant was
(2010) 2010 Ohio 494    challenging the admission of those statements as violating his rights under the Confrontation Clause. (Citation.) As a result of
Citation               Court           Date        Published?   Summary                      Evidence                 Status of Case




State v. Wynn (2009)   Ohio Court of   Dec. 21,                 Appeal from drug                                      judgment affirmed; any error
2009 Ohio 6744         Appeals         2009        Y            convictions                  drug certificate         is harmless




                                                                                             statements made by
State v. Cashin (2009) Ohio Court of                            Appeal from rape             complaining witness to   judgment affirmed; any error
2009 Ohio 6419         Appeals         Dec. 8, 2009 Y           conviction                   social worker            is harmless




                                                                Appeal from juvenile court
In re D.K. (2009) 2009 Ohio Court of                            conviction of minor as an    school disciplinary      conviction reversed; Melendez-
Ohio 6347              Appeals         Dec. 4, 2009 Y           "unruly child"               records                  Diaz applies




State v. Woods (2009) Ohio Court of    Nov. 19,                 Appeal from robbery                                   judgment affirmed; any error
2009 Ohio 6169        Appeals          2009        Y            convictions                  fingerprint report       is harmless
Citation               Discussion
                       "At Wynn's trial, which was held more than a year after the decision in Crager was issued but three months before the decision in
                       Melendez-Diaz was issued, BCI forensic scientist Beverly Wiltshire testified that the tests she performed on the vegetation forming the
                       basis of count one in the indictment revealed the substance was marijuana. Her lab report on the substance was admitted into evidence
                       without objection. However, when the state asked Wiltshire to identify her co-worker's lab report on the vegetation that formed the basis
                       of count two of the indictment, Wynn's defense counsel objected to Wiltshire being asked 'about an examination, [sic] laboratory test
                       that she did not perform.' The trial court overruled the objection, finding that, under Crager, the second lab report fell within the business
                       record exception to the hearsay rule, and its admission did not violate Wynn's confrontational rights because the reports were
                       nontestimonial.Relying on Melendez-Diaz, Wynn argues the trial court committed reversible error by refusing to exclude from evidence
State v. Wynn (2009) the second lab report. However, any error the trial court may have committed in admitting the second lab report was harmless beyond a
2009 Ohio 6744         reasonable doubt." (P16-P17.)
                       "Cases considering the issue post-Crawford have turned on the issue of whether the statements were testimonial or nontestimonial. See
                       State v. Crager, 116 Ohio St.3d 369. This distinction revolves around the issue of whether an objective witness would reasonably
                       believe that the statements made would be available for use at a later trial. Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527.
                       (Citation.) We have held that statements made by a victim of sexual abuse to a hospital social worker are generally not testimonial in
                       nature for purposes of Confrontation Clause analysis. (Citations.) In this case, we need not decide whether the statements made by
                       P.B. about which Clark testified were testimonial or nontestimonial in nature. P.B. testified at trial and was therefore subject to cross-
                       examination. . . . Appellant also argues that Clark's testimony regarding the statements made by P.B. during their interview violated
                       constituted inadmissible hearsay, and that counsel was ineffective for failing to object on that basis. Evid.R. 803(4) establishes a
State v. Cashin (2009) hearsay exception for [s]tatements made for purposes of medical diagnosis or treatment . . . . The exception also includes statements
2009 Ohio 6419         made by a child victim identifying the perpetrator of sexual abuse, as such statements assist both in treating any physical injuries and in
                       "In Ohio, certain types of reports akin to business records have been held non-testimonial. (Citations.) Subsequently, however, Crager
                       was vacated by the United States Supreme Court and remanded to the Ohio Supreme Court for reconsideration in view of the court's
                       opinion in Melendez-Diaz v. Massachusetts (2009),129 S.Ct. 2527. [Summary of Melendez-Diaz.] It seems clear that the junior high
                       school disciplinary records at issue here were accusatory and, at a minimum, were created for use in further disciplinary proceedings. It
                       might also reasonably be expected that such documents would be used in proceedings such as those in the present matter. This being
                       the case, the evidence was testimonial, entitling appellant to confront its author. Even if the disciplinary records were not testimonial,
                       such evidence is still inadmissible. It is important to note that the records themselves were never introduced into evidence. What was
                       admitted was testimony from the high school principal that he had seen the records and that the records indicated that there had been
In re D.K. (2009) 2009 prior discipline in similar circumstances. . . . The principal never established that he had personal knowledge of the events recorded in
Ohio 6347              those records sufficient to satisfy Evid.R. 602. Absent the establishment of such competence, the principal's testimony about the
                       "[Summary of Melendez-Diaz.] Here, the BCI report that Roggenbeck prepared was not sworn to before a notary public. Thus, it is not
                       the functional equivalent of an affidavit. However, the report does state the findings of the analyst and the state used those findings at
                       trial to help prove Woods' guilt without presenting the live testimony of the analyst who performed the initial testing procedures.
                       McCleland testified at trial and stated that he verified Roggenbeck's findings and independently reviewed the evidence submitted. These
                       facts raise the question of whether the BCI report constitutes "testimonial" evidence within the meaning of the Confrontation Clause.
                       However, we do not need to resolve this question. . . . A criminal defendant may waive his right to confront a witness. See Melendez-
State v. Woods (2009) Diaz, 129 S.Ct. at 2534, fn. 3; see, also, (citation.) . . . Here, Woods' trial counsel did not object at trial. Thus, trial counsel waived
2009 Ohio 6169         Woods' confrontation rights." (P22-P24.)
Citation               Court            Date        Published?   Summary                    Evidence                 Status of Case




                                                                                                                     conviction reversed on other
State v. Mooney (2009) Ohio Court of                             Appeal from drug                                    issue; Melendez-Diaz issue
2009 Ohio 5886         Appeals          Nov. 3, 2009 Y           convictions                lab report               not reached

                                                                                                                     Conviction affirmed; Melendez-
                                                                                                                     Diaz not violated.
                                                                                                                     Discretionary appeal not
                                                                                                                     allowed by State v. Norman,
                                                                                                                     2010 Ohio 354, 2010 Ohio
State v. Norman (2009) Ohio Court of                             Appeal from robbery                                 LEXIS 392 (Ohio, Feb. 10,
2009 Ohio 5458         Appeals          Oct. 8, 2009 Y           conviction                 DNA report               2010)




                                                                                                                     decision to deny motion for
                                                                                               statements made by    new trial is reversed. Crawford
State v. Gray (2009)   Ohio Court of    Sept. 14,                Appeal from denial for new complaining witness to   applies and counsel was
2009 Ohio 4821         Appeals          2009        Y            trial for burglary conviction police and neighbor   ineffective.

                                                                                                                     Conviction affirmed; Melendez-
                                                                                                                     Diaz not applicable.
                                                                                                                     Discretionary appeal not
                                                                                                                     allowed by State v. Gerhart,
                                                                                                                     123 Ohio St. 3d 1524, 2009
                                                                                                                     Ohio 6487, 918 N.E.2d 526,
State v. Gerhart (2009) Ohio Court of   Aug. 19,                 Appeal from drug                                    2009 Ohio LEXIS 3548 (Ohio,
2009 Ohio 4165          Appeals         2009        Y            convictions                n/a                      Dec. 16, 2009)
Citation               Discussion
                       "[Summary of Melendez-Diaz.] However, this does not mean the State of Ohio can never introduce a lab report into evidence without
                       subpoenaing the author of the report. The Melendez-Diaz Court, in response to the dissent's concern the majority ruling might invalidate
                       burden-shifting statutes adopted by a number of States, noted: ". . . In their simplest form, notice-and-demand statutes require the
                       prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is
                       given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial. (Citation.)
                       Contrary to the dissent's perception, these statutes shift no burden whatever. The defendant always has the burden of raising his
                       Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt
State v. Mooney (2009) procedural rules governing objections. (Citations.) . . . In the instant action, the parties dispute whether the State provided Appellant with
2009 Ohio 5886         the lab report. Our review of the evidence does not reveal a clear answer either way. Because we reverse and remand on the issue of

                       "Here, Norman did indeed cross-examine the forensic scientist who performed the DNA tests and prepared the laboratory report.
                       (Footnote 1: ". . . the United States Supreme Court recently held that a state forensic analyst's laboratory report prepared for use in a
                       criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause. See Melendez-Diaz v.
                       Massachusetts (2009), 129 S.Ct. 2527.) Therefore, Norman had no grounds for a Crawford objection at trial. Furthermore, the BCI
                       employee who actually collected the DNA samples from the mask and tire iron did not prepare the reports or perform any of the tests
State v. Norman (2009) used in Norman's prosecution. Therefore, that BCI employee did not make any testimonial statements as contemplated by Crawford
2009 Ohio 5458         and the Confrontation Clause. The mere act of handling evidence, by itself, is not a testimonial statement." (P71, fn. 1.)

                         "Whether the victim's statements made to either the neighbor or the police fell under any recognizable hearsay exception, the out-of-
                         court statements made to the police officers under the circumstances of this case were clearly testimonial and subject to the protections
                         of the Confrontation Clause. Contrary to the assertions otherwise, the state's case against appellant was based upon the victim's out-of-
                         court statements, which were not subject to cross-examination. (Footnote.) See Melendez-Diaz v. Massachusetts (2009), 129 S.Ct.
                         2527 (the framers of the Constitution were no more willing to exempt from cross-examination volunteered testimony or answers to open-
                         ended questions than they were to exempt answers to detailed interrogation; court was unaware of any authority that held that a person
                         who volunteers his testimony is any less a "witness against" the defendant, than one who is responding to interrogation). Appellant
State v. Gray (2009)     demonstrated that, due to her attorney's ineffectiveness, her trial was so demonstrably unfair that there is a reasonable probability the
2009 Ohio 4821           result would have been different absent her attorney's deficient performance." (P31-P32.)




                        "We note that in Melendez-Diaz v. Massachusetts (2009), 129 S.Ct. 2527, 2532, the United States Supreme Court held that under the
                        Confrontation Clause, affidavits showing the results of forensic analysis performed on substances which had been seized by law
                        enforcement fall into the core class of testimonial statements and, therefore, are inadmissible unless the defendant has the opportunity
State v. Gerhart (2009) to cross-examine the analyst responsible for the affidavits at trial. However, this issue is not before us in this case [because State did
2009 Ohio 4165          not introduce any laboratory evidence in this case]." (P30, fn. 1.)
Citation                 Court             Date        Published?   Summary                        Evidence               Status of Case




State v. McDougald    Ohio Court of        Aug. 17,                 Appeal from drug                                      conviction affirmed; Melendez-
(2009) 2009 Ohio 4417 Appeals              2009        Y            convictions                    drug certificate       Diaz issue not timely




                                                                                                                          conviction affirmed; Melendez-
Randolph v. State        Oklahoma Court of                          Appeal from drug                                      Diaz not applicable at
(2010) 2010 OK CR 2      Criminal Appeals  Feb. 4, 2010 Y           convictions                    drug certificate       preliminary hearing




State ex rel. Juvenile                                              Appeal from judgment of
Dep't of Multnomah                                                  cout of appeals reversing
County v. SP (In re                                                 juvenile court conviction of   statements made by     decision of court of appeals
S.P.) (2009) 346 Ore.    Oregon Supreme    Aug. 13,                 sodomy and affirming           child to child abuse   affirmed; statements are
592                      Court             2009        Y            conviction of sexual abuse     professional           testimonial


State v. Hamilton                                                                                                         conviction reversed and
(2009) 232 Ore. App.     Oregon Court of   Nov. 25,                 Appeal from drug                                      remanded; Melendez-Diaz
270                      Appeals           2009        Y            conviction                     drug certificate       applies
Citation               Discussion
                       "In support of his untimely petition, McDougald cited a case that was pending before the United States Supreme Court and argued that
                       the case created a 'newly Constitutional issue' that applied retroactively to him. Specifically, he relied on Melendez-Diaz v.
                       Massachusetts (2008), 552 U.S. 1256. . . . However, while the Supreme Court has since issued a decision in this case, see Melendez-
                       Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the case was only pending at the time McDougald filed his post-conviction petition with
                       the trial court. Clearly McDougald's post-conviction petition was premised on a case that the Supreme Court of the United States had
                       yet to decide. . . . Because his petition was untimely and because he failed to satisfy the criteria set forth in R.C. 2953.23(A), the trial
State v. McDougald     court lacked jurisdiction to consider the merits of the petition. Gibson at P10. Accordingly, the trial court did not err in rejecting the
(2009) 2009 Ohio 4417 petition." (P9-P10.)
                       "Judge Chapel in dissent argues that admission of the drug analysis report under section 751 unconstitutionally denied Appellant's right
                       to confront his accusers at preliminary examination, relying on Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The robust
                       exposition of that case in the dissent simply has no application here. In Melendez-Diaz, the Supreme Court held the state trial court's
                       admission of a hearsay drug analysis report at a criminal trial, without an opportunity to cross-examine the maker of the report, violated
                       the Sixth Amendment's Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). See
                       Melendez-Diaz, 129 S.Ct. at 2532 . . . . 'The right to confrontation is basically a trial right. It includes both the opportunity to cross-
                       examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching
                       exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable
Randolph v. State      cause exists to hold the accused for trial.' Barber, 390 U.S. at 725. . . . In section 751 of Title 22, the Legislature provided for the
(2010) 2010 OK CR 2 admissibility of certain reports at preliminary examinations and other hearings, and established reasonable conditions for a party to
                       Court determines that statement is hearsay under Crawford/Davis principles. Also states, regarding Oregon case law that "Campbell
                       held that Article I, section 11, of the Oregon Constitution allows the admission of hearsay in a criminal trial when the declarant is
                       unavailable and the declarant's statements have adequate indicia of reliability. That holding was based on the decision of the United
                       States Supreme Court in Roberts. The Court of Appeals correctly has observed that 'in Crawford, the United States Supreme Court
                       abandoned the Confrontation Clause test from Ohio v. Roberts on which Campbell was predicated.' S. P., 218 Ore. App. at 140. See
State ex rel. Juvenile also n 5, above (slip op at 10) quoting Melendez-Diaz. Because neither party has raised the question, we do not determine, at this time,
Dep't of Multnomah     whether Crawford and Melendez-Diaz cast doubt on the continued validity of Campbell's analysis of the Confrontation Clause of Article
County v. SP (In re    I, section 11. We point this out 'so that our decision is not misunderstood to foreclose any potential issue of state law for the future.'
S.P.) (2009) 346 Ore. Kennedy, 295 Ore. at 268." (607, fn. 8.)
592

                        "the state concedes that the laboratory report identifying the substance in defendant's possession was erroneously admitted over
State v. Hamilton       defendant's objection and that the case should be remanded. We agree that the trial court erred in admitting the laboratory report and
(2009) 232 Ore. App.    that the error was not harmless. See Melindez-Diaz v. Massachussets, 129 S. Ct. 2527 (2009) (holding that affidavits reporting the
270                     results of forensic analysis are testimonial and thus subject to Sixth Amendment requirements). Accordingly, we reverse and remand. "
Citation                 Court             Date         Published?   Summary                       Evidence                   Status of Case




                                                                     Reconsideration of           certificates attesting to
State v. Bergin (2009)   Oregon Court of   Sept. 23,                 appellate court's affirmance accuracy of breath-         judgment affirmed; Melendez-
231 Ore. App. 36         Appeals           2009         Y            of DUI conviction            testing machine             Diaz not applicable

                                                                                                                              Conviction affirmed; Melendez-
                                                                                                                              Diaz applies but error is
                                                                                                                              harmless. Review granted by
State v. Willis (2009)   Oregon Court of                             Appeal from drug                                         State v. Willis, 2010 Ore.
230 Ore. App. 215        Appeals           Aug. 5, 2009 Y            conviction                    drug certificate           LEXIS 29 (Or., Jan. 21, 2010)
                                                                                                                              Suppression affirmed;
                                                                                                                              prisoners testifying by
                                                                                                                              videoconference violates
                                                                                                                              Confrontation Clause.
                                                                                                                              Reargument denied by
                                                                                                                              Commonwealth v. Atkinson,
Commonwealth v.                                                      Appeal of denial of pre-trial                            2010 Pa. Super. LEXIS 51
Atkinson (2009) 2009     Pennsylvania      Dec. 10,                  motion for supression of      witness tesifying by       (Pa. Super. Ct., Feb. 16,
PA Super 239             Superior Court    2009         Y            evidence in drug case.        videoconferencing          2010)



State v. Keeper of
Records R.I. Hosp.                                                   Motion to quash subpoena medical records                 Motion to quash denied;
(2010) R.I. Super.       Rhode Island      Jan. 14,                  for medical records in   (containing evidence of         Melendez-Diaz issue is
LEXIS 10                 Superior Court    2010         Y            motor vehicle case       blood alcohol)                  premature

State v. Johnson         South Dakota                                appeal from drug                                         conviction affirmed; no
(2009) 2009 SD 67        Supreme Court     Jul. 29, 2009 Y           convictions                   audio recording            hearsay error
Citation                 Discussion
                         "Melendez-Diaz is distinguishable from Norman (and, by extension, petitioner's case) in important ways. The analyst certificates in
                         Melendez-Diaz were 'quite plainly affidavits,' . . . and, for that reason, within the core class of testimonial statements described in
                         Crawford. Id. at 2532. Intoxilyzer certificates of accuracy, on the other hand, are not sworn under oath. Further, the analyst certificates in
                         Melendez-Diaz served to prove directly a fact that is an element of the crime that the defendant was convicted of. Intoxilyzer certificates
                         bear a more attenuated relationship to conviction: They support one fact (the accuracy of the machine) that, in turn, supports another
                         fact that can establish guilt (blood alcohol level). Finally, the Melendez-Diaz majority opinion emphasizes that, when an analyst swears
                         to the result of a substance test, he or she knows that it is for use at a specific later trial against a specific defendant. Id. at 2539. The
                         substance that was subjected to analysis was seized from a particular defendant and the sole purpose of the test was for use against
                         that defendant. Although Intoxilyzers produce evidence that is used only in criminal prosecutions or administrative hearings, the person
State v. Bergin (2009)   who performs the test of a machine's accuracy does so with no particular prosecutorial use in mind, and, indeed, there is no guarantee
231 Ore. App. 36         that the machine will ever, in fact, be used. . . . In other words, the chemical analysis in Melendez-Diaz would be analogous to an

                         "In Melendez-Diaz v. Massachusetts, 129 S Ct 2527, 2542 (2009), the United States Supreme Court recently decided that a
                         Massachusetts statute very similar to ORS 475.235 (2005) was unconstitutional under the Sixth Amendment. We apply the law as it
                         exists at the time of the appeal. State v. Jury, 185 Ore. App 132, 139, 57 P3d 970 (2002). Thus, the trial court's ruling was also error
State v. Willis (2009)   under the federal constitution." (219.) However, this error was harmless due to other evidence that defendant knowingly possessed
230 Ore. App. 215        drugs.




                         "We find that the use of the videoconferencing equipment violated Appellant's right to confrontation. No compelling state interest has
                         been advanced. While efficiency and security are important concerns, they are not sufficient reasons to circumvent Appellant's
Commonwealth v.          constitutional right to confrontation. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009). . . . Clearly, having prisoners
Atkinson (2009) 2009     testify by video is a more convenient method, considering the logistics associated with transporting a prisoner. However, convenience
PA Super 239             and cost-saving are not sufficient reasons to deny constitutional rights. (Citations.)" (P17-P18.)
                         "Defendant next argues that his Motion to Quash should be granted based upon the rationale set forth in the cases of Crawford v.
                         Washington, 541 U.S. 36 (2004) (. . .) and Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) (. . .) . . . . The Crawford and
                         confrontation issues generally involve a decision made at time of trial relating to whether certain hearsay evidence should be admitted
State v. Keeper of       which may violate a defendant's Sixth Amendment right of confrontation. That decision must be made at the time the prosecution seeks
Records R.I. Hosp.       to introduce the evidence at trial and is premature at this time. The decision as to whether to admit the evidence at trial in the
(2010) R.I. Super.       Commonwealth would be subject to that particular Justice's discretion in the Commonwealth. The Motion to Quash the subpoena is
LEXIS 10                 denied on those grounds." (28-29.)
                         "The United States Supreme Court recently extended this core holding of Crawford to certificates of state laboratory analysts identifying
State v. Johnson         the material seized by police and connected to the defendant as cocaine of a certain quantity. Melendez-Diaz v. Massachusetts, 129 S.
(2009) 2009 SD 67        Ct. 2527, 174 L. Ed. 2d 314 (2009)." (18, fn. 7.)
Citation               Court              Date        Published?   Summary                    Evidence                  Status of Case




State v. Walker (2009)                                             Appeal from probation                                judgment affirmed; Melendez-
2009 Tenn. Crim. App. Tennessee Court of Aug. 10,                  revocation for defendant                             Diaz not applicable in
LEXIS 644              Criminal Appeals  2009         Y            convicted of drug crimes   drug certificate          probation revocation hearings

                                                                                                                        conviction remanded for
Langham v. State                                                                              out of court statements   harmless error analysis.
(2010) 2010 Tex. Crim. Texas Court of                              Appeal from drug           from confidential         Confrontation Clause violation
App. LEXIS 21          Criminal Appeals   Mar. 3, 2010 Y           conviction                 informant                 found under Davis.




Hernandez v. State                                                                            pre-sentence
(2010) 2010 Tex. App. Texas Court of                               Appeal from indecency with investigation reports from Judgment affirmed; Melendez-
LEXIS 851             Appeals             Feb. 5, 2010 N           child conviction           other convictions          Diaz issue waived


Weiss v. State (2009)
2009 Tex. App. LEXIS Texas Court of       Dec. 10,                 Appeal from assault                                  judgment affirmed; Melendez-
9453                  Appeals             2009        N            conviction                 medical records           Diaz not applicable




                                                                   Appeal from aggravated                               conviction affirmed; document
Grey v. State (2009)   Texas Court of                              assault with deadly weapon                           not testimonial under
299 S.W.3d 902         Appeals            Nov. 4, 2009 Y           conviction                 penitentiary records      Melendez-Diaz
Citation                Discussion

                       "The Tennessee courts have yet to determine whether Crawford applies in a probation revocation proceeding. However, a general
                       survey of other jurisdictions reveals that the federal circuits and state courts addressing the issue have found that Crawford does not
                       apply to probation or supervised release revocation hearings. (Citations.) These courts reached this conclusion because the Crawford
                       decision was based on the Sixth Amendment, and the Sixth Amendment applies only in 'criminal prosecutions.' . . . Like these others
State v. Walker (2009) courts, we decline to extend Crawford to probation revocation proceedings. . . . [B]ecause of our ultimate conclusion that Crawford does
2009 Tenn. Crim. App. not apply in a probation revocation proceeding and nothing in Melendez-Diaz indicates that it is to be applied in such context, Melendez-
LEXIS 644              Diaz does not change the outcome of this case." (8-9.)
                       "The United States Supreme Court has yet to define the outer boundaries of what constitutes a 'testimonial' out-of-court statement, but it
                       has identified 'three kinds of [out-of-court] statements that could be regarded as testimonial: . . . [3] statements that were made under
Langham v. State       circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
(2010) 2010 Tex. Crim. (Footnote 19: (Citation); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531 (2009).)" (15-16, fn. 19.) Court analyzes statements
App. LEXIS 21          under Davis.

                      "As mentioned previously, the pre-sentence investigation report from Hernandez's prior convictions was admitted into evidence. The
                      report was admitted during the testimony of a probation officer, Randy Graef. Graef was not the probation officer who prepared
                      Hernandez's report, but he was called to the stand to provide general testimony regarding the preparation of pre-sentence investigation
                      reports. . . . Hernandez made no confrontation objection to the testimony of Graef or to the district court's decision to admit the report.
                      Instead, Hernandez objected to the admission under rules of evidence 404(b) and 403, stated that the evidence was impermissible
                      bolstering, and argued that Graef's testimony regarding the conclusions in the report exceeded the scope of the permissible testimony
Hernandez v. State    that Graef was called to provide. For this reason, we must conclude that Hernandez failed to preserve this issue for appeal. See Tex. R.
(2010) 2010 Tex. App. App. P. 33.1; see also Melendez Diaz v. Massachusetts, 129 S. Ct. 2527, 2534 n.3 (2009) (explaining that 'right to confrontation may . . .
LEXIS 851             be waived, including by failure to object to offending evidence'); (Citation.)" (59-62.)

                      "On appeal, appellant argues these pages contained testimonial statements of a doctor and a nurse that are inadmissible under
Weiss v. State (2009) Crawford v. Washington. (Citation.) Medical records created for purposes of treatment and admitted under the business records
2009 Tex. App. LEXIS exception are not testimonial under Crawford. (Footnote 62: Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2533 n.2 (2009);
9453                  Citations.) Accordingly, introduction of the medical records did not violate appellant's confrontation rights." (28-29, fn. 62.)
                      "the State argues that the admission of the challenged evidence was not error because the penitentiary records were business records.
                      See Tex. R. Evid. 803(6). But after the State filed its brief, the Supreme Court announced its opinion in Melendez-Diaz v.
                      Massachusetts, 129 S. Ct. 2527 (2009). . . . Regardless of whether they qualify for admission under the rules of evidence, documents
                      kept in the regular course of business are not admissible under the Confrontation Clause 'if the regularly conducted business activity is
                      the production of evidence for use at trial.' Id. at 328. Insofar as the State argues that business records are categorically exempt from
                      Crawford, the argument is without merit. [Discussion of Texas cases.] These court of criminal appeals opinions predate Melendez-Diaz,
                      and they must be read in light of this most recent Confrontation Clause opinion by the Supreme Court. [Summary of Melendez-Diaz.]
                      Melendez-Diaz makes it clear that if a statement is made for prosecutorial use, or in anticipation that it will be used prosecutorially, the
Grey v. State (2009)  statement is testimonial regardless of the substance of what is said. . . . Under Melendez-Diaz, a statement made for prosecutorial use
299 S.W.3d 902        is testimonial even if the statement does not directly accuse the defendant or wrongdoing, does not describe the crime or any human
Citation               Court            Date        Published?   Summary                    Evidence            Status of Case




                                                                                                                conviction affirmed; Melendez-
Wood v. State (2009)   Texas Court of                            Appeal from murder                             Diaz applies but error is
299 S.W.3d 200         Appeals          Oct. 7, 2009 Y           conviction                 autopsy report      harmless




                                                                 Appeal from aggravated
Hamilton v. State    Texas Court of     Aug. 31,                 sexual assault, robbery and                    conviction affirmed; Melendez-
(2009) 300 S.W.3d 14 Appeals            2009        Y            kidnapping convictions      DNA report         Diaz not applicable




Cuadros-Fernandez v.                                                                                            conviction reversed and
State (2009) 2009 Tex. Texas Court of   Aug. 28,                 Appeal from capital murder                     remanded; Melendez-Diaz
App. LEXIS 6896        Appeals          2009        Y            conviction                 DNA report          applies




Long v. State (2009)                                                                                            conviction affirmed; Melendez-
2009 Tex. App. LEXIS Texas Court of     Aug. 20,                 Appeal from murder                             Diaz applies but error is
6577                 Appeals            2009        N            conviction                 toxicology report   harmless
Citation               Discussion
                       "Appellant's point of error is premised on the assertion that Colemeyer's autopsy report was testimonial hearsay under Crawford. The
                       State challenges this assertion, citing four Texas court of appeals opinions holding that an autopsy report is not testimonial. (Citations.)
                       However, these opinions were written before the Supreme Court announced its opinion in Melendez-Diaz v. Massachusetts, 129 S. Ct.
                       2527 (2009). . . . In Denoso, the court of appeals held that an autopsy report was nontestimonial because it was not prior testimony at a
                       preliminary hearing, before a grand jury, or at a former trial, and was not a statement given in response to police interrogation. 156
                       S.W.3d at 182. The opinion in Melendez-Diaz makes it clear that the meaning of "testimonial" is broader than the definition used in
                       Denoso. The Court expressly rejected the argument that out-of-court statements are testimonial only if they are made in response to
                       interrogation. Melendez-Diaz, 174 L.Ed.2d at 325. In Campos, the court of appeals held that an autopsy report was nontestimonial
Wood v. State (2009) because it contained 'sterile recitations' of 'objective facts,' was 'routine, descriptive, and nonanalytical,' and '[did] not relate subjective
299 S.W.3d 200         narratives pertaining to [the defendant's] guilt or innocence.' 256 S.W.3d at 761-62. In Melendez-Diaz, the Court addressed similar
                       "The precise question here -- whether an expert witness who offers his opinion based in part on lab work performed by another violates
                       the Confrontation Clause -- does not appear to be addressed in Melendez-Diaz. (Quotation from Melendez-Diaz.) This passage
                       indicates the Supreme Court would hold records or information created by personnel that play a role in the analysis that leads to the
                       expert's opinion are not testimonial. See id. We are also persuaded by the court's reasoning in United States v. Washington, 498 F.3d
                       225 (4th Cir. 2007), cert. denied, 129 S. Ct. 2856 (2009). In Washington, the court considered this very issue. In that case, the court
                       held an expert witness could express his opinion, without violating the Confrontation Clause, as to whether alcohol and drugs were
                       present in Washington's blood when he was arrested and charged with operating a motor vehicle under the influence of drugs or
                       alcohol. Id. at 231. The court reasoned the raw data produced by the scientific instruments were not testimonial statements, as the data
Hamilton v. State      were in essence "statements" by the machine rather than the operator of the instrument. Id. The Confrontation Clause implicates
(2009) 300 S.W.3d 14 statements made by persons, not machines. (Citations.) Accordingly, we hold Foster's opinion, based on data generated by scientific
                       "The issue, then, is whether the DNA report in this case, although not in the form of an affidavit, is testimonial. The Supreme Court did
                       not end its analysis with its observation that the certificates were affidavits; it also looked to the substance of the certificates to
                       determine if they 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' and to the use of the affidavits to determine if they were 'functionally identical to live, in-court
                       testimony, doing 'precisely what a witness does on direct examination.' Melendez-Diaz; (Citation). . . . In this case, Kerri Kwist's
                       knowledge that the DNA report she prepared 'would be available for use at a later trial' is apparent from her notes included in State's
Cuadros-Fernandez v. Exhibit 8. Those notes state that the DNA testing was requested by 'McKinney PD,' and Kwist reported her findings to Detective Adams
State (2009) 2009 Tex. who said he would report them to the district attorney. . . . Given the evidence of Kwist's knowledge of the case from these documents
App. LEXIS 6896        and that the district attorney was actively involved in the case, we can conclude only that Kwist believed her DNA report concerning the

                     "The initial question is whether the toxicology report, included within the autopsy report, was testimonial in nature. In Melendez-Diaz . . .
                     [t]he United States Supreme Court held that the admission of the certificates violated the petitioner's Sixth Amendment right to confront
                     the witnesses against him, citing Crawford. The court reasoned that confrontation is one means of assuring accurate forensic analysis.
                     Melendez-Diaz, 129 S.Ct. at 2542. Based on Melendez-Diaz, we hold that the toxicology report was testimonial in nature and that the
                     trial court erred in allowing the toxicology report to be introduced as evidence. Because the error was of constitutional dimension, we
Long v. State (2009) must next determine whether the error was harmless beyond a reasonable doubt and whether it contributed to appellant's conviction or
2009 Tex. App. LEXIS punishment. (Citation). We note that, after holding that the admission of the forensic analysis was error, the Melendez-Diaz Court stated
6577                 that it expressed 'no view as to whether the error was harmless.' Melendez-Diaz, 129 S.Ct. at 2542 n.14." (4-5.)
Citation               Court             Date         Published?   Summary                     Evidence                 Status of Case




Berkely v. State (2009) Texas Court of   Aug. 19,                  Appeal from sexual assault                           conviction affirmed; Melendez-
298 S.W.3d 712          Appeals          2009         Y            conviction                 Sexual assault report     Diaz not applicable




Camacho v. State
(2009) 2009 Tex. App. Texas Court of                               Appeal from drug                                     conviction affirmed; Melendez-
LEXIS 5975            Appeals            Jul. 30, 2009 N           convictions                 drug certificate         Diaz issue waived




Walker v.
Commonwealth (2010)
2010 Va. App. LEXIS Virginia Court of    Jan. 26,                  Appeal from grand larcency blue book lisitng car's   conviction affirmed; Melendez-
33                  Appeals              2010         N            conviction                 value                     Diaz not applicable
Citation                Discussion
                        "Berkley did not have prior opportunity to cross-examine Krausse as to the contents of her report. Therefore, resolution of this issue
                        turns on whether the report is testimonial within the meaning of Crawford. The United States Supreme Court recently noted that medical
                        records, created for treatment purposes, are not "testimonial" within the meaning of Crawford. Melendez-Diaz v. Massachusetts, 129
                        S.Ct. 2527, 2533 n.2 (2009). Because there was evidence before the court that the purpose of the report was to render medical
                        treatment to the complainant, and this evidence went unchallenged, we hold the trial court did not err in admitting the nurse's report of
                        the examination. Berkley also complains the trial court erred in allowing Botello to read from Krausse's report. However, if a document is
                        properly admitted into evidence, a witness may read the contents of that document to the jury. (Citation.) Lastly, Berkley asserts the trial
                        court erred in allowing Botello to interpret for the jury some of the observations Krausse made in the report. Although Berkley objected
Berkely v. State (2009) to admission of the report when it was first offered, he did not object to any of the State's questions or Botello's answers. He therefore
298 S.W.3d 712          failed to preserve this complaint for appellate review." (715.)
                        "As a result of her failure to object to this evidence, her complaint that the trial court erred by admitting Fout's testimony that the exhibits
                        contained methamphetamine is not preserved for our review. (Footnote 6: (citation); Melendez-Diaz v. Mass., 129 S. Ct. 2527, 2534
                        (2009) ('The right to confrontation may, of course, be waived, including by failure to object to the offending evidence. . .') Accordingly, we
                        limit our analysis to Fout's testimony about the methods the nontestifying chemist employed; the trial court's admission of State's
                        Exhibits 22, 26, 27, and 31; and Fout's testimony about the weights of the substances in those exhibits. . . . Fout's testimony about the
                        methods used by the nontestifying chemist is not governed by Crawford, however, because no out-of-court statement was admitted
                        through this part of his testimony. Rather, the testimony was Fout's in-court statement based upon his own personal knowledge
Camacho v. State        acquired from having trained and worked at the DPS laboratory. The Sixth Amendment concerns at issue in Crawford, therefore, do not
(2009) 2009 Tex. App. apply to this portion of Fout's testimony. Nor do those concerns apply to the baggies of controlled substances admitted as State's
LEXIS 5975              Exhibits 22, 26, 27, and 31 because Crawford applies only to 'statements.' . . . Turning to Fout's testimony about the weights of those
                        "The defendant maintains introduction of the 'blue book' violated his right to confront the witnesses against him as interpreted in
                        Crawford v. Washington, 541 U.S. 36, 68 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009). . . . Riner v.
                        Commonwealth, 268 Va. 296, 601 S.E.2d 555 (2004), noted that the United States Supreme Court had 'indicated that business records
                        are a type of hearsay 'that by their nature [are] not testimonial.' Id. at 322-23 (quoting Crawford, 541 U.S. at 56). Subsequently,
                        Melendez-Diaz stated: 'Business and public records are generally admissible absent confrontation not because they qualify under an
                        exception to the hearsay rules, but because -- having been created for the administration of an entity's affairs and not for the purpose of
Walker v.               establishing or proving some fact at trial -- they are not testimonial.' Melendez-Diaz, 129 S. Ct. at 2539-40. (Citation.) The NADA
Commonwealth (2010) publication was a repository of information compiled for uses other than in litigation; it was not accusatory. . . . As such, it was not
2010 Va. App. LEXIS testimonial evidence, and its admission did not violate the Sixth Amendment. The trial court did not err in admitting the Commonwealth's
33                      exhibit." (2-4.)
Citation              Court             Date       Published?   Summary                   Evidence                  Status of Case




Farmer v.
Commonwealth (2010) Virginia Court of   Jan. 12,                Appeal from drug                                    conviction affirmed; Melendez-
55 Va. App. LEXIS 18 Appeals            2010       Y            convictions               drug certificate          Diaz issue waived




Mitchem v.
Commonwealth (2010)
2010 Va. App. LEXIS Virginia Court of   Jan. 12,                                                                    conviction affirmed; Melendez-
18                  Appeals             2010       N            Appeal from DUI conviction DMV transcript           Diaz issue waived




Crawford v.
Commonwealth (2009) Virginia Court of   Dec. 29,                Appeal from murder        Statements in affidavit   conviction affirmed;
55 Va. App. 457     Appeals             2009       Y            conviction                for protective order      statements are not testimonial
Citation             Discussion
                     "It is unquestionable that the laboratory certificate of drug analysis was testimonial under Crawford v. Washington, 541 U.S. 36 (2004).
                     Melendez-Diaz, 129 S. Ct. at 2531-32; see Grant v. Commonwealth, 54 Va. App. 714, 719-20, 682 S.E.2d 84, 87 (2009) (applying
                     Melendez-Diaz to hold that the attestation clause on a certificate of breath analysis is testimonial in nature and that its admission in the
                     face of a proper objection, without providing an opportunity for cross-examination of the attestor, constituted a violation of the
                     Confrontation Clause). That said, under the facts of this case, appellant waived any Confrontation Clause or Due Process Clause
                     violation that may have occurred by the admission of the laboratory certificate of drug analysis. As our Supreme Court has recognized,
                     'it is undisputed that a criminal defendant can waive the right to confrontation,' and '[t]he decision in Crawford did not alter that fact.'
Farmer v.            (Citation); see Melendez-Diaz, 129 S. Ct. at 2534 n.3." (575-576.) By not following the procedure in Code § 19.2-187.1, the defendant
Commonwealth (2010) waived the confrontation clause issue. "Here, appellant objected at trial to the admissibility of the laboratory certificate. He did not
55 Va. App. LEXIS 18 subpoena the forensic analyst prior to trial nor did he request that the court or Commonwealth do so. Thus, appellant waived his
                     "On appeal, appellant argues that Code § 46.2-384 is unconstitutional because it impermissibly shifts the burden to appellant to produce
                     evidence that he was not convicted of a prior DUI offense, thus depriving him of his due process rights. Appellant further contends the
                     Commonwealth's use of the DMV transcript to establish its prima facie case violates the Confrontation Clause of the Sixth Amendment
                     to the United States Constitution. Finding appellant failed to make these objections in the trial court, we hold appellant is procedurally
                     barred from making these arguments for the first time on appeal. . . . Upon review of the record in this case, appellant failed to make the
                     specific arguments to the trial court he now makes on appeal. At trial, appellant objected to admission of the DMV transcript on the
Mitchem v.           ground that it was inadmissible hearsay. . . . At no time did appellant contend the presumption of validity pertaining to DMV transcripts in
Commonwealth (2010) Code § 46.2-384 violated his due process rights or his Confrontation Clause rights under the Sixth Amendment. Because he failed to
2010 Va. App. LEXIS preserve these objections, he cannot now be heard to make this argument on appeal. (Citation.) Appellant contends his argument that
18                   the Commonwealth violated the Confrontation Clause of the Sixth Amendment is not procedurally barred, in light of Melendez-Diaz v.
                     "The statements at issue in this appeal are contained within an 'Affidavit for Preliminary Protective Order.' Although the Supreme Court
                     of the United States recently stated that affidavits 'fall within the 'core class of testimonial statements' subject to the Confrontation
                     Clause, we find it significant that the Court did not go as far as to hold that all affidavits are per se testimonial. Melendez-Diaz v.
                     Massachusetts, 129 S. Ct. 2527, 2532 (2009). In fact, neither Melendez-Diaz, nor any other case from the Supreme Court for that
                     matter, has overruled or limited the applicability of the primary purpose test set forth in Davis. Lacking any further guidance on the
                     matter from the Supreme Court, it becomes our task to attempt to reconcile the language in Davis with that in Melendez-Diaz and to
                     determine whether the primary purpose test set forth in Davis is applicable to an affidavit unrelated to a criminal prosecution or whether
Crawford v.          conversely, any and all affidavits are ipso facto testimonial, irrespective of the primary purpose for their existence. (Footnote.) Justice
Commonwealth (2009) Scalia's majority opinion in Crawford makes it clear that the evil the Confrontation Clause was intended to prevent was the purposeful
55 Va. App. 457      creation and use in a criminal case of an affidavit as a substitute for the live testimony of a witness . . . . After carefully reviewing the
Citation                  Court              Date        Published?   Summary                    Evidence                 Status of Case




Miller v.
Commonwealth (2009)                                                                                                       convictions affirmed;
2009 Va. App. LEXIS Virginia Court of        Sept. 22,                Appeal from robbery and                             Melendez-Diaz issue waived
421                 Appeals                  2009        N            firearm convictions        ballistics certificate   and any error is harmless




Grant v.                                                                                                                  convictions reversed and
Commonwealth (2009) Virginia Court of        Sept. 1,                                                                     remanded; Melendez-Diaz
54 Va. App. 714     Appeals                  2009        Y            Appeal from DUI conviction blood alcohol report     applies




State v. Lui (2009) 153   Washington Court   Nov. 23,                 Appeal from murder                                  Conviction affirmed; Melendez-
Wn. App. 304              of Appeals         2009        Y            conviction                 DNA report               Diaz not violated
El Pueblo de Puerto                                                                                                       Trial court's decision to
Rico v. Diaz Medina                                                                                                       supress evidence reversed;
(2009) 2009 TSPR No.      Puerto Rico        Aug. 27,                 Appeal from suppression                             Majority does not discuss
138                       Supreme Court      2009        Y            motion in drug case        n/a                      Melendez-Diaz.
Citation                Discussion
                        "We agree that the ballistics certificate was testimonial under Crawford. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-
                        32 (. . .); see also Grant v. Commonwealth, 54 Va. App. 714, 723 (2009) (applying Melendez-Diaz to hold that the attestation clause on
                        a certificate of breath analysis is testimonial in nature and that its admission in the face of a proper objection, without providing an
                        opportunity for cross-examination of the attestor, constituted a violation of the Confrontation Clause). Nevertheless, we conclude the
                        admission of the ballistics certificate did not violate appellant's Confrontation Clause rights under the facts of this case. As our Supreme
                        Court has recognized, 'it is undisputed that a criminal defendant can waive the right to confrontation' . . . (Citation.) The Court has held
Miller v.               that "'Code § 19.2-187.1 sets out a reasonable procedure to be followed in order for a defendant to exercise his right to confront a
Commonwealth (2009) particular limited class of scientific witnesses at trial'" and that this procedure "adequately safeguards a criminal defendant's rights under
2009 Va. App. LEXIS the Confrontation Clause." Magruder, 275 Va. at 301, 305. . . . Here, the trial court ruled, consistent with Virginia Supreme Court
421                     precedent, see Magruder, 275 Va. at 305, that appellant waived his confrontation right by failing to call the analyst. Further, appellant did
                        "The Commonwealth conceded in its supplemental brief that the contents of the attestation clause contained in the certificate are
                        testimonial in nature, based upon the United States Supreme Court's decision in Melendez-Diaz. The Commonwealth also conceded
                        that Grant's notice pursuant to Code § 19.2-187.1 complied with the requirements of that statute as it was construed in Magruder v.
                        Commonwealth, 275 Va. 283 (2008), cert. granted sub nom. Briscoe v. Virginia, 129 S. Ct. 2858 (2009). While we are not obliged to
                        accept the Commonwealth's concession of legal error, (citation), we agree with the Commonwealth in this case: the attestation clause is
                        testimonial under the holding of Melendez-Diaz, (footnote) and Grant complied with the requirements of Code § 19.2-187.1. . . .
                        [Summary of Melendez-Diaz.] Virginia law does not require that certificates of blood alcohol analysis be sworn to before a notary public.
Grant v.                The law does, however, require that the preparer of the certificate memorializing the results of a chemical analysis of a person's breath
Commonwealth (2009) for the purposes of prosecution under Code § 18.2-266 sign an attestation clause confirming the accuracy of the test and that the test
54 Va. App. 714         was conducted pursuant to the regulations of the Department of Forensic Science. Code § 18.2-268.9. Grant argues that this attestation
                        "We conclude that Melendez-Diaz is distinguishable from Lui's case. . . . Here, in contrast, the autopsy and DNA reports were not
                        offered in lieu of live testimony. Indeed, the reports themselves were not admitted into evidence at all. Rather, Dr. Harruff testified to his
                        own opinions and conclusions about the cause and timing of Boussiacos's death. And Pineda testified to her own analysis of the DNA
                        testing data. The evidence against Lui was the experts' opinion—not their underlying data—and the testimony that was introduced was
                        introduced live. Moreover, in Melendez-Diaz, the disputed evidence was a 'bare-bones statement' that the substance tested contained
                        cocaine, and the defendant 'did not know what tests the analysts performed, whether those tests were routine, and whether interpreting
                        their results required the exercise of judgment or the use of skills that the analysts may not have possessed.' Melendez-Diaz, 129 S. Ct.
                        at 2537. But here, both experts testified extensively about their own expertise and that of their employees, the protocols and procedures
                        used in their respective offices, and the tests employed in Lui's case. Lui had the opportunity to challenge their assertions in the „crucible
                        of cross-examination.‟ Melendez-Diaz, 129 S. Ct. at 2536 (quoting Crawford, 541 U.S. at 61-62). This situation is fundamentally different
State v. Lui (2009) 153 from Melendez-Diaz, where the State improperly used ex parte out-of-court affidavits to prove its case. Here, the very live testimony
Wn. App. 304            absent in Melendez-Diaz was present. Lui argues that the presence of Dr. Harruff and Pineda as live witnesses still violated his right to
El Pueblo de Puerto
Rico v. Diaz Medina     Majority does not discuss Melendez-Diaz. Dissent states that they would have sent case back to the lower court with instructions that
(2009) 2009 TSPR No. the evidence (dog scent evidence and drug certificate) only be admitted with testimony from the dog handler and forensiic analyst. (68-
138                     69.)

				
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