Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
Dawn Marie Deitz, Assistant State's Attorney, for plaintiff and appellee.
Chad Rory McCabe, for defendant and appellant.
[¶ 1] Lindsay A. Severinson appeals a district court judgment convicting her of driving under the influence after entering a conditional guilty plea. Severinson argues the district court erred by admitting an analytical report containing the results of Severinson's blood test because the State could not produce the forensic scientist who peer reviewed the analytical report. We affirm.
[¶ 2] Severinson was charged with driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01. Severinson's blood was drawn and submitted for analysis. Amber Vetter, a forensic scientist for the North Dakota Crime Laboratory, performed the blood analysis and included her findings in the analytical report. Severinson objected to admission of the analytical report under N.D.R.Ev. 707, arguing the State was required to produce Ahmad Akhtar, the individual who conducted the peer review of Vetter's analytical report. The State could not produce Akhtar.
[¶ 3] On December 6, 2012, the district court held a hearing on Severinson's motion in limine seeking to suppress the analytical report to determine whether the State would be required to produce Akhtar. The district court concluded Akhtar's peer review of the analytic report did not contain testimonial statements. Therefore, the State was not required to produce Akhtar at trial, the analytical report was not suppressed and Severinson's motion was denied. Severinson entered a conditional guilty plea, reserving the right to appeal the order denying her motion in limine.
[¶ 4] "We review a district court's decision on a motion in limine for an abuse of discretion." State v. Lutz, 2012 ND 156, ¶ 3, 820 N.W.2d 111 (quotation omitted). "A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner or if it misinterprets or misapplies the law." Id. "Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo." Id. (quotation omitted).
[¶ 5] Severinson argues the district court erred in denying her motion because N.D.R.Ev. 707 and the Confrontation Clause of the Sixth Amendment to the United States Constitution require the State to produce Akhtar at trial. She argues the analytical report should not have been admitted into evidence absent the presence of Akhtar at trial.
[¶ 6] Rule 707(a), N.D.R.Ev., requires the State to notify the defendant in writing if the State intends to introduce an analytical report under the shortcut procedures outlined in ch. 39-20, N.D.C.C. If the defendant timely objects, the State "must produce the person requested." N.D.R.Ev. 707(b). The rule was adopted in response to the United States Supreme Court's holding in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). See N.D.R.Ev. 707, Explanatory Note and Sources. There, the Supreme Court held certificates of analysis showing the results of a forensic analysis on seized substances were testimonial for confrontation purposes. Melendez-Diaz, at 311. Testimonial statements are inadmissible unless the witness appears at trial. Id. The Court described the class of testimonial statements as:
" ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would ...