Hicker v. San Diego County Superior Court

          ORDER

          WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE

         The matter before the Court is the Objection to the Report and Recommendation of the Magistrate Judge filed by the Petitioner George Paul Hicker. (ECF No. 35).

         I. Introduction

         On December 9, 2013, Petitioner George Paul Hicker filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his conviction in San Diego Superior Court, case number CN251716. Petitioner contends that his rights under the Sixth Amendment Confrontation Clause were violated at trial when an analyst witness for the prosecution was permitted to testify about the results of blood alcohol tests performed by another analyst who did not testify, and the blood alcohol report was admitted into evidence. Petitioner asserts that the testimony and the laboratory report were admitted contrary to clearly established United States Supreme Court precedent. Respondent contends that the decision of the state court to admit the testimony and the laboratory report was not contrary to or an unreasonable interpretation of United States Supreme Court authority.

         II. Background Facts

         On August 28, 2008, Petitioner was arrested for driving under the influence. After his arrest, a sample of Petitioner's blood was taken and tested by the San Diego County Crime Laboratory. A complaint was subsequently filed charging Petitioner with three counts: Count One - driving under the influence of alcohol, a violation of Vehicle Code § 23152(a); Count Two - driving with a measurable blood alcohol level above .08, a violation of Vehicle Code § 23152(b); and Count Three - driving with an open container, a violation of Vehicle Code § 23222(a).^[1] Petitioner pled not guilty to the charges.

         On February 9, 2009, the San Diego Superior Court began a two week jury trial. The prosecution called witness Jorge Pena, a laboratory analyst employed by the San Diego Crime Laboratory. Pena testified that he is the technical leader for the alcohol section at the San Diego Crime Laboratory, and that he is in charge of troubleshooting and training. Pena described in detail the gas chromatography test performed by the technicians in the laboratory to determine alcohol concentration in blood samples, including the calibration process used to test the instrument. Pena testified that based upon his training and experience, if the instrument is properly calibrated, the gas chromatography test is "an accurate method to determine someone's blood alcohol level." (ECF No. 32-2 at 25).

         Pena testified that four individuals at the laboratory are authorized to conduct blood alcohol analysis, including himself and analyst Raegan Carter. Pena testified that a gas chromatography test was performed on Petitioner's blood sample by laboratory analyst, Raegan Carter. Pena testified that he was not present during Carter's analysis of Petitioner's blood sample. Pena testified that he reviewed Carter's report, after the analysis was completed by Carter. Pena testified that he did not have any direct knowledge as to how the specific blood sample in this case came to the crime lab, but that there was a system in place for all samples that come from the Encinitas station where this sample originated. Pena described in detail about the procedures used in the laboratory, absorption rates of alcohol in the body, and the effects of alcohol on mental impairment.

         During direct examination, the prosecutor questioned Pena about the analysis and testing conducted by Carter. Counsel for Petitioner objected to Pena's testimony about the testing performed by Carter on the grounds the testimony violated Petitioner's Sixth Amendment right to confrontation. The objection was overruled. During Pena's testimony, the Court received into evidence "People's Exhibit 13" the laboratory packet for the blood sample analysis prepared by analyst Carter. The exhibit consisted of seven pages including: (1) a one page certification prepared and signed by Carter; (2) five pages of print outs from the chromatography instrument containing data from the calibration tests, the quality control tests, and the tests of Petitioner's blood sample; and (3) a one page lab log sheet on which Carter recorded the results from the tests. (ECF No. 19-9 at 1-7).^[2]

         Pena reviewed the print outs from the chromatography instrument in Exhibit 13 and testified that the instrument that tested Petitioner's blood was in proper working order. The prosecutor asked Pena, "what did the instrument test the defendant's blood alcohol level to be?" (ECF No. 32-2 at 33). Petitioner's counsel objected: "Foundation." Id. At sidebar, counsel for Petitioner objected on the "grounds of hearsay and Sixth Amendment." Id. The Court overruled the objection and allowed a "continuing objection to this particular line of inquiry." Id. Pena provided the following testimony:

LH (Prosecutor): Mr. Pena, ... were you present when Raegan Carter was testing these blood samples?

Pena: No, not looking over her shoulders I never do that, no.

LH: Now, what procedures have - do analysts who test blood in your office follow when they . . . test a particular "blood sample?

Pena: [W]ell the same procedures I've been explaining. . . .

JH: Do you have any knowledge of how Raegan Carter tested the blood sample. . . ?

Pena: Yes.

JH: [H]ow do you know that?

Pena: ... all the analysts have followed the exactly the same procedure.

JL (the Court): I'm sorry, the question has to do with what Raegan did on that -... that particular date, relevant to this particular case.

JA (Counsel for Petitioner): And your honor under 702, the evidence code, no personal knowledge.

JL: Okay I, I will allow it.

Pena: So for this particular sample, again I was not right next to her watching her analyzing so I have to go with what is established procedure for the lab, which I know that she follows.

(ECF No. 32-2 at 34). Pena testified that his role in the analysis was a review of Carter's work. Pena testified,

I receive all of the analysis, receive all Ms. Carter's notes, receive everything and I go through all of that information and verify that all that information is correct. And after I finish my review process, and I provide it back to Ms. Carter so that she can file the results.

LH: Is there anything in the packet in front of you, that indicates you, you've reviewed her work?

Pena: Yes. ... On page three of the packet, in the heading part of the packet for that page, it says technically and administratively reviewed by and has my signature and date when I did that and my stamp with my name on it.

LH: What kind of things are you checking for when you review Raegan Carter's notes, and the results that she comes up with"?

Pena: Well basically I go through every single document that is prepared in the course of analyzing the sample, I look at the calibration records I look at the chromatograms that will do that, the graphs. I look at the quality control samples that were used to test m-between the samples that I mentioned earlier to make sure that all of that came within the range required. I look specifically to the actual chromatograms to make sure again what I explained earlier that the peaks are where they're supposed to be, that they nave the proper shape, they have all the information that needs to be contained there, and I also look at the reporting itself whether the sample was received by whom it was received and who and then the entry that Ms Carter does which is the results, her initials, the date and all of that is correct. Once all of that is confirmed that. . . the information contained in that report is correct and then . . . put my signature and my stamp that is was reviewed and again give it back to Ms. Carter for processing, for clerical.

LH: And you did that in this case with Mr. Hicker's blood sample?

Pena: Correct.

(ECF No. 32-2 at 35). Pena testified that the instrument was calibrated correctly, and that the calibration records were accurate. Pena was asked:

LH: Okay. So based on the the graphs, can you tell whether Raegan Carter tested this particular blood sample accurately?

Pena: Yes.

LH: How?

Pena: Again based on the actual chromatogram, based on the actual results of the instrument, that the peaks are showing that where they're supposed to be showing, they're showing in the place where they're supposed to be showing, anathatthe results, the two results that are obtained are agreeing results, that follows the quality control program. The agreeing of the results has to be according to Title 17, within plus or minus of .01 of each other and according to our manual within 07 of each other, and those results being within those - that criteria.

LH: And so based on the graphs that you're looking at, do you have an opinion about the accuracy of the blood results?

Pena: Yes.

LH: What is your opinion?

Pena: Well that the results obtained in this specific test were accurate -based again the quality control samples that I just explained and based on the end results from the actual sample.

(ECF No. 32-2 at 42). Pena testified that the results of the blood alcohol test conducted by Carter were .142 and Exhibit 13 was introduced into evidence. The jury found Petitioner not guilty of the charge in Count One of driving under the influence of alcohol and guilty of the charge in Count Two of driving with a blood alcohol level of 0.08 percent or greater.

         Petitioner was sentenced to five years of summary probation, 96 hours jail with credit for 24 hours, 5 days weekend work release, an 18-month alcohol program, a Mothers Against Drunk Driving panel class, a fine of $2, 408.00, and other terms as set forth in the Misdemeanor - Traffic Judgment Minutes.^[3]

         Petitioner appealed his conviction to the Appellate Division of the San Diego Superior Court ("Appellate Division"). Petitioner asserted that he was entitled to examine the analyst who performed the blood alcohol test at trial in order to address the human error at each step of the process. Petitioner asserted that the United States Supreme Court in Bullcoming v. New Mexico, ^[4] clearly ruled that a defendant has the right to confront the witness who performed the blood analysis at trial. Petitioner asserted that the testimony of a witness who was not personally present during ...