In December 2014, a Houston man named Andrew Lee Williams struck and killed a 49-year-old mother and grandmother with his vehicle as she jogging along a street in Angelton, Brazoria County. He was convicted of vehicular manslaughter in May 2016 and sentenced to 60 years in prison. The stiff sentence was imposed because prosecutors charged that Williams was intoxicated when the crash occurred and because he had two prior felony convictions.
Williams and his vehicle were located shortly after the crash. Believing him to be intoxicated, the police obtained a search warrant to collect a sample of his blood. That blood sample was sent to two different labs for testing. The first lab to test the sample was the Brazoria County Crime Lab and the second was an independent forensic laboratory in Pennsylvania named NMS Labs. Brazoria County crime lab analyst Sam Wylie found a marijuana derivative in Williams’ blood while the NMS lab found derivatives of methamphetamine in Williams’ blood.
The prosecution decided to present its intoxication evidence without the use of in-court testimony. Instead the prosecution would rely upon an affidavit from Dr. Wendy Adams, an assistant lab director with NMS.
Certificate of Analysis is Admissible Without Timely Objection
This evidentiary procedure is permissible under Art. 38.41 of the Texas Code of Criminal Procedure so long as the prosecution give the trial court pretrial notice of its intent to do so.
In this case the prosecution gave the court a 50-day pretrial notice that it would rely on the NMS lab report via a “certificate of analysis.”
The prosecution attached to its certificate of analysis an affidavit by Dr. Adams.
In an October 19, 2019 decision, the Texas Court of Criminal Appeals (“CCA”) spelled out the contents of the Adams affidavit:
“ … (1) Adams is employed by NMS Labs; (2) NMS is accredited by the American Board of Forensic Toxicology; (3) Adams is familiar with NMS’s standard operating procedures; (4) Adams’s duties as an Assistant Laboratory Director include the analysis of evidence ‘for one or more law enforcement agencies’; (5) Adams’s curriculum vitae, which was attached to the affidavit, accurately reflected her educational background; (6) she had ‘reviewed the data from the tests or procedures on the toxicological evidence’ from Williams’s case; and (7) the attached lab report represented ‘an accurate record of the tests or procedures performed on the . . . evidence received by this laboratory and are reliable and approved by NMS Labs’.”
The prosecution also attached to its notice/certificate fifteen pages of material concerning NMS’s manner of analysis of Williams’ blood sample. The prosecution, however, offered no evidence that Dr. Adams either personally conducted or was in anyway personally involved in the blood analysis process. The issue of intoxication thus rested exclusively on the certificate of analysis through Dr. Adams’ affidavit.
As a general rule, a criminal defendant has a right under the Confrontation Clause of the Sixth Amendment to insist that anyone making a “testimonial” statement, such as Dr. Adams’ affidavit, be required to personally testify in court so that the defendant may confront and cross-examine the witness.
“Notice and Demand” Statutes
The U.S. Supreme Court, however, has approved an exception to this constitutional requirement by allowing states—such as Texas with its Art. 38.41—to enact what are known as “notice-and-demand” statutes. The Supreme Court has described the parameters of statutes like Art. 38.41 this way:
“In their simplest form, notice-and-demand statutes require the prosecution to [notify] 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.”
10 Day Objection is Critical
Proper and timely objections are critical in Texas criminal proceedings. This was evidenced in the Williams’ case. The prosecution fulfilled its obligation under Art. 38.41 by providing defense counsel with a timely filed copy of its certificate of analysis. Upon receipt of the certificate, defense counsel had until the 10th day before the trial to file written objections to that certificate which would have rendered it inadmissible at trial absent the presence of the analyst.
Defense counsel did not timely file the requisite Art. 38.41pretrial objection. He made that tactical decision on his belief that the prosecution’s certificate of analysis did not substantially comply with Art. 38.41 because the certificate was not supported by an affidavit of the NMS analyst who actually conducted the tests on Williams’ blood. This procedural defect, defense counsel reasoned, removed his obligation to file a pretrial objection and opened the door for him to advance a constitutional confrontation objection at trial.
Confrontation Objection Can Be Forfeited
The CCA disagreed, finding, first, that the prosecution’s certificate did in fact comply with the requirements of Art. 38.41; and, second, “if the defendant does not promptly object to a timely filed and substantially compliant certificate, his [trial] confrontation objection will be forfeited.” The CCA concluded:
“We reiterate that Article 38.41 does not in any way diminish a criminal defendant’s core Sixth Amendment right ‘to confront those who bear testimony against him.’ The defendant can always defeat an Article 38.41 proffer—by asserting his Sixth-Amendment right of confrontation, in writing, ‘not later than the 10th day before the trial begins.’ If he acts within this time frame, there is no need for him to explain to the trial judge how or why he thinks the certificate fails to comply with Article 38.41; his constitutional right of confrontation simply trumps the statute. But if he tries to act outside this time frame, all bets are off.”
This case offers a valuable lesson to defense attorneys; namely, adhere to the requirements of any statutory scheme requiring objections. In this case defense counsel made a tactical decision not to timely object, as required by Art. 38.41, because he believed the prosecution had not substantially complied with the article. Defense counsel should have filed the requisite timely objection which would have rendered the compliance issue moot and would have forced the prosecution to produce at trial the analyst who actually conducted the Williams’ blood analysis.
The tactical decision not to timely object will now, likely, result in an ineffective assistance of counsel claim in a post-conviction habeas corpus proceeding.