BRIEF OF THE APPELLANT

E-Filed Document Mar 8 2017 15:49:59 2016-KA-01456-COA Pages: 20 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI VANESSA PAGE APPELLANT v. No. 2016-KA-1456-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Appeal from the Circuit Court of Harrison County, Miss, second judicial district. No. B2402-16-150 Justin T. Cook, MB # 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS 39207 jcook@ospd.ms.gov T: (601) 576-4290 F: (601) 576-4205 Attorney for the Appellant

CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies pursuant to Mississippi Rules of Appellate Procedure 28(a)(1) that the following persons have an interest in the outcome of the case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. Vanessa Page Appellant Robert C. Stewart Billy Stage Trial Counsel for the Appellant Hon. Christopher L. Schmidt Trial Judge Ian Baker Scott Lusk Trial Counsel for the State Justin T. Cook George T. Holmes Appellate Counsel for the Appellant Jim Hood, Esq Attorney General of Mississippi Jason L. Davis, Esq. Appellate Counsel for the State This the 8th day of March, 2017. s/ Justin T. Cook Justin T. Cook, MB # 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Attorney for the Appellant i

TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... ii Index of Authorities... ii Statement of Assignment... 1 Statement of Issue Presented for Review... 1 Statement of the Case... 1 Procedural History... 1 Facts... 1 Summary of the Argument... 3 Argument... 3 Issue One: Based solely on an anonymous tip, Police did not have reasonable suspicion to stop Page s vehicle, violating her rights under both the Federal and State constitutions.... 3 Issue Two: Admission of the blood-alcohol testing was in violation of Page s fundamental right to confront the witnesses against her.... 7 Conclusion... 15 Certificate of Service... 16 INDEX OF AUTHORITIES CASES Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011)... 10 California v. Green, 399 U.S. 149 (1970)... 8 Cook v. Rankin Cty., 168 So. 3d 1089 (Miss. Ct. App. 2013),... 5 Cook v. State, 159 So. 3d 534 (Miss. 2015)... 5 Corbin v. State, 74 So. 3d 333 (Miss. 2011),... 7 Crawford v. Washington, 541 U.S. 36 (2004).... 7 Dies v. State, 926 So. 2d 910 (Miss. 2006)... 3 Eaddy v. State, 63 So. 3d 1209 (Miss. 2011)... 3, 4 Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 (2000)... 4 ii

Floyd v. City of Crystal Springs, 749 So. 2d 110 (Miss. 1999)... 4, 6 Grim v. State, 102 So. 3d 1073 (Miss. 2012)... 12 Jenkins v. State, 102 So. 3d 1063 (Miss. 2012)... 12 Maryland v. Craig, 497 U.S. 836, 846 (1990)... 8 Mattox v. United States, 156 U.S. 237 (1895)... 8 Melindez-Diaz v. Massachusetts, 557 U.S. 305 (2009).... 8 Pointer v. Texas, 380 U.S. 400 (1965)... 8 United States v. Olano, 507 U.S. 725 (1993)... 7 Williamson v. State, 876 So. 2d 353 (Miss. 2004)... 4 OTHER AUTHORITIES Acts 25... 7 TREATISES 5 John Henry Wigmore, Evidence 1367... 8 CONSTITUTIONAL PROVISIONS U.S. Const. Amend. VI... 7 U.S. Const. Art. VI, Clause 2.... 12 iii

STATEMENT OF ASSIGNMENT This case is properly assigned to the Mississippi Court of Appeals STATEMENT OF ISSUE PRESENTED FOR REVIEW Issue One: Based solely on an anonymous tip, Police did not have reasonable suspicion to stop Page s vehicle, violating her rights under both the Federal and State constitutions. Issue Two: Admission of the blood-alcohol testing was in violation of Page s fundamental right to confront the witnesses against her. STATEMENT OF THE CASE Procedural History On May 16, 2016, a Harrison County, Mississippi, Grand Jury returned a twocount indictment against the appellant, Vanessa Page, charging her with two counts of felony driving under the influence, arising out of the same incident. 1 (C.P. 5-6, R.E. 4-5). On September 13, 2016, Page waived her right to jury trial and was tried and convicted of one count of DUI in a bench trial, presided over by the Honorable Christopher L. Schmidt, circuit judge. (C.P. 32, R.E. 6). Page was subsequently sentenced to five (5) years with three (3) years suspended in the custody of the Mississippi Department of Corrections and placed into the intensive supervision house arrest program. (Tr. 32-34, R.E. 6-8). Facts On August 14, 2015, 911 dispatch received a call providing them with a name and description of a suspected drunk-driver, including a vehicle description and a tag number. (Tr. 9, Exhib. 2). The alleged drunk driver was leaving an Alcoholics 1 Page was charged with one-count of felony so-called common law DUI and one count of statutory DUI. 1

Anonymous meeting. Officer Robert McKeithen, a patrol officer with the Biloxi Police Department, was dispatched the information and proceeded to the area the car was believed to be heading. (Tr. 16). Just after 7:00 in the evening, Officer McKeithen saw a vehicle matching that description. (Tr. 18). Officer McKeithen observed no traffic offense, but made the stop anyway. (Tr. 19). The vehicle stopped immediately, and when McKeithen approached, he smelled the odor of alcoholic beverage. (Tr. 19-20). The occupant, Vanessa Page, had slurred speech and glassy eyes. (Tr. 20). When asked to exit the vehicle, Page was unsteady on her feet. (Tr. 21). A second officer arrived and administered field sobriety tests. (Tr. 49). Page did not pass and was placed into custody for driving with a suspended driver s license. (Tr. 50-51). At the station, Page agreed to an Intoxilyzer test, but was not capable of giving enough of a sample. (Tr. 55). Page verbally consented to a blood draw and was taken to a local hospital. (Tr. 56). At the hospital, in the presence of an officer and a phlebotomist, Page gave written consent to a blood draw. (Tr. 56, Exhib. 6). The phlebotomist, however, did not recall being present for the blood draw. (Tr. 83). Resulting tests indicated a.19 blood-alcohol level and were admitted through a technical reviewer rather than the analyst who performed the test. (Tr. 97). Court records indicated that Page had two previous DUI convictions that occurred within five (5) years of the incident in question. (Tr. 100-07, Exhibs. 8, 9). 2

SUMMARY OF THE ARGUMENT The stop of Page s vehicle was based solely on an anonymous tip. Police observed no corroborative evidence that would support the tip. Accordingly, the stop violated Page s constitutional right to be free from unreasonable search and seizure. The trial court erred in allowing testimony of a technical reviewer rather than the analyst who performed the actual testing. Doing so violated Page s rights to confront the witnesses against her. Despite state law to the contrary, United States Supreme Court does not carve out an exception for technical reviewers. ARGUMENT Issue One: Based solely on an anonymous tip, Police did not have reasonable suspicion to stop Page s vehicle, violating her rights under both the Federal and State constitutions. This Court applies a mixed standard of review when considering Fourth Amendment issues. Eaddy v. State, 63 So. 3d 1209, 1213 (Miss. 2011) (quoting Dies v. State, 926 So. 2d 910, 917 (Miss. 2006)). This Court applies de novo review when determining whether probable cause or reasonable suspicion exists. Id. But the de novo review is limited to the trial court's decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards. Dies, 926 So. 2d at 917. An individual's right to be free from unreasonable searches and seizures is protected by the Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. See Eaddy, 63 So. 3d at 1212 13. Under the Fourth Amendment's protections, police may detain a person for an investigatory stop when the officers have reasonable suspicion, grounded in specific and articulable facts which allow the officers to conclude the suspect is wanted in connection with criminal 3

behavior. Eaddy, 63 So. 3d at 1213 (citing Walker v. State, 881 So. 2d 820, 826 (Miss. 2004)). Reasonable suspicion generally stems from one of two sources: an officer's personal observation, or an informant's tip. Eaddy, 63 So. 3d at 1213 (citing Williamson v. State, 876 So.2d 353, 355 (Miss. 2004)). [A]n informant's tip may provide reasonable suspicion if accompanied by some indication of reliability; for example, reliability may be shown from the officer's independent investigation of the informant's information. Eaddy, 63 So. 3d at 1213 (citing Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)). The Mississippi Supreme Court has addressed reasonable suspicion in drivingunder-the-influence (DUI) cases. In Floyd v. City of Crystal Springs, 749 So. 2d 110, 112 (Miss. 1999), the Court upheld the defendant's DUI conviction, finding that reasonable suspicion to stop the defendant was present. In Floyd, an off-duty police officer received a tip from a known informant that a person was driving a red convertible Mustang in a reckless manner. Id. at 112. That officer relayed the information to a dispatcher, who then radioed the information to an on-duty officer. Id. The on-duty officer then located a car matching the description and eventually pulled over the car, though the officer never observed the driver violate any traffic laws. Id. at 112. After pulling the car over, the officer observed an open liquor bottle on the passenger side. Id. The driver exhibited signs of intoxication. Id. Considering the accuracy of the informant's description of the vehicle in Floyd and the fact that the informant was known and had provided correct information to officers in the past, the Supreme Court found that the tip provided reasonable suspicion to stop the vehicle. Id. at 119. In its analysis, this supreme cited with approval a Texas Court of Appeals case which noted that a tip by unnamed informant of undisclosed 4

reliability standing alone will rarely establish the requisite level of suspicion necessary to justify investigative detention. Id. at 118 (citing State v. Sailo, 910 S.W.2d 184 (Tex.App.1995)). The Mississippi Supreme Court further addressed investigatory DUI stops in Cook v. State, 159 So. 3d 534 (Miss. 2015). Officers received a call from dispatch to be on the lookout for a vehicle that was driving erratically and the driver of the vehicle was possibly flashing a badge of some sort. The dispatched officer did not know who made the initial call, but saw a vehicle matching the description and starting following it. Id. at 535. The officer did not see the driver flash a badge of any sort or drive erratically. Nevertheless, the officer stopped the Avalanche and subsequently arrested Cook for DUI. This Court initially affirmed the conviction in Cook. Cook v. Rankin Cty., 168 So. 3d 1089, 1091-95 (Miss. Ct. App. 2013), rev'd sub nom. Cook v. State, 159 So. 3d 534 (Miss. 2015). This Court held that the stop did not violate Cook's Fourth Amendment rights. Essentially, this Court found that there were sufficient indicia of reliability when the officers located a vehicle matching the description of Cook's vehicle. Id. Further, the court held that the behavior reported reckless driving and impersonating a law enforcement official justified the investigatory stop to resolve the ambiguous situation. Id. Cook appealed, and on certiorari, the Supreme Court reversed this Court noting that the officers in Cook failed to take further action to corroborate the criminal activity reported in the tip prior to stopping Cook. Cook, 159 So. 3d at 540. Without taking further action to corroborate the report, the officers did not have reasonable suspicion to stop Cook Id. An accurate description of Cook's vehicle and location was insufficient. 5

The court further noted: [P]ermitting a stop solely on an anonymous tip such as the one here can open the door for legal stops based on tips provided by persons with intent to harass or embarrass others[.] Id. The facts of this case are indistinguishable from those of Cook. The police received an anonymous tip, indicating a person was driving under the influence. In the instant case, the trial court distinguished Cook from the facts of this case, focusing in part on the fact that the person who called 911 identified herself (Tr. 43). It is irrelevant that the called to 911 identified herself. For the purposes of this analysis, anonymous does not mean unknown or any other colloquial definition. Rather, based on the caselaw cited above, an anonymous tip is one in which law enforcement does not have a working relationship with the tipster. See, generally, Floyd, 749 So. 2d 110. Police had no working relationship with the person who called dispatch. It matters not that she identified herself, or that her allegation contained specificities. The trial court s conclusion that the situation in this case falls under [an] expectation that the Supreme Court left an opportunity to occur and that this tip was not necessarily anonymous is erroneous. (Tr. 45). Anonymous tips in this area of the law center on the relationship between the police and the tipster. Floyd, 749 So. 2d at 112. In this case, there was no such relationship. The officer in this case admitted under oath that he saw no traffic violation. (Tr. 19). Absent the anonymous tip, there was no reason to believe that the car in question was being operated by someone who was intoxicated. Based upon the arguments presented above, because law enforcement violated Page s constitutional right to be free from unreasonable seizure, this Court should reverse Page s conviction and render a verdict of not guilty. Additionally, all fines, court 6

costs and fees assessed to Page should be returned to her. Issue Two: Admission of the blood-alcohol testing was in violation of Page s fundamental right to confront the witnesses against her. A violation of the Confrontation Clause is a violation of a fundamental, substantive right, which seriously affects the fairness, integrity or public reputation of judicial proceedings. Corbin v. State, 74 So. 3d 333, 337 (Miss. 2011), reh'g denied (Dec. 1, 2011) (quoting United States v. Olano, 507 U.S. 725, 732 (1993). Thus, allegations of Confrontation Clause violations are subject to plain error review. Id. Regardless, Page s trial counsel specifically challenged the admissibility of the technical reviewer s testimony. Part of the Sixth Amendment of the United States Constitution, the Confrontation Clause provides that [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him. U.S. Const. Amend. VI. Where testimonial evidence is at issue... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). The right of confrontation is deeply rooted in both the common law and in Roman law. The principle that the accused should be permitted to confront her accusers can be found as far back as the Bible. In Acts 25:16, the Roman Governor Festus, when discussing the proper treatment of his prisoner, Paul, stated: It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-toface, and has been given a chance to defend himself against the charges. Acts 25:16. Due to its incorporation via the Due Process Clause of the Fourteenth Amendment, this procedural right applies to both federal and state prosecutions. See 7

Pointer v. Texas, 380 U.S. 400 (1965). The right to confrontation is an essential right of criminal defendants, noted by the United States Supreme Court as a bedrock constitutional guarantee. Crawford v. Washington, 541 U.S. 36, 42 (2004). The Confrontation Clause exists for several purposes. First, in ensures an adversarial criminal process by allowing for cross-examination, the greatest legal engine ever invented for the discovery of the truth. California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 John Henry Wigmore, Evidence 1367 (3d ed. 1940). Second, by requiring that witnesses make their statements under oath, in court, and in front of the accused, the confrontation right promotes the truthfulness of witnesses. See, Maryland v. Craig, 497 U.S. 836, 846 (1990). Third, in contrast to an ex parte affidavit, in-court examination allows the jury to observe the witness s demeanor, thus aiding the jury in assessing his credibility. Green, 399 U.S. at 158; see also, Mattox v. United States, 156 U.S. 237, 242-43 (1895). The United States Supreme Court has required strict adherence to Crawford. In Melendez-Diaz v. Massachusetts, prosecutors attempted to circumvent Crawford by submitting affidavits in which crime lab analysts certified the reliability of their forensic reports. 557 U.S. 305 (2009). Melendez-Diaz had been arrested in connection with an undercover drug buy. Id. at 308. During the operation, police seized a number of bags containing a white, powdery substance, which they submitted to the state crime laboratory for testing. Id. At Melendez-Diaz s trial for distributing and trafficking cocaine, the State submitted the substance in the bags as evidence. Id. In addition, the state submitted certificates of analysis that showed that the substance was in fact cocaine. Id. These certifications were performed before a notary public by the crime lab s analysts, pursuant to Massachusetts law. Id. Melendez-Diaz objected on the 8

grounds that Crawford required in-court testimony by the analysts who performed the test. Id. at 309. The trial court nevertheless admitted the certificates. Id. Eventually, the jury convicted Melendez-Diaz, and he appealed. Id. The United States Supreme Court held that the Sixth Amendment does not permit prosecutors to submit forensic reports absent an opportunity to cross- examine the analysts who generated those reports. Id. at 329. The Court reiterated its assertion in Crawford that the Confrontation Clause s purpose is to ensure reliability of evidence, which only cross-examination accomplishes. Id. at 317 (quoting Crawford, 541 U.S., at 61-62). Forensic evidence does not obviate this cross-examination requirement by being reliable by its nature; it is not uniquely immune from the risk of manipulation. Id. at 318. As the Melendez-Diaz Court explained, A forensic analyst responding to a request from a law enforcement official may feel pressure - - or have an incentive - - to alter the evidence in a manner favorable to the prosecution. Id. Thus, only by cross-examining these analysts can reliability be ensured: Like 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. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place. Id. (internal citations omitted). In addition, even though there may be a more preferable way to ensure such reliability, the Constitution guarantees one way: confrontation. Id. The Court also explained that [c]onfrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Id. Deficiencies in forensic evidence have been responsible for a significant number of erroneous convictions. Id. at 319. The Supreme Court stated that the forensic evidence submitted against Melendez- Diaz illustrates the deficiencies that confrontation might expose: 9

At the time of trial, petitioner 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. While we still do not know the precise tests used by the analysts, we are told that the laboratories use methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs[.] At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. Id. at 319-20. Therefore, the Court concluded that the trial court erred by allowing the forensic reports into evidence without subjecting the analysts to cross examination. Id. at 329. Melendez-Diaz s conviction was then reversed and the case remanded. Id. The Supreme Court has also rejected the use of surrogates in testifying about forensic reports. Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). Bullcoming had rearended a pickup truck. Id. at 2710. When police officers arrived on the scene, they noticed that Bullcoming appeared intoxicated. Id. After failing a field sobriety test, Bullcoming was arrested and charged with driving under the influence of alcohol. Id. Because he refused to take a breathalyzer, police secured a sample of Bullcoming s blood and sent it to the state crime laboratory for blood alcohol content (BAC) testing. Id. At trial, the prosecution sought to admit the crime laboratory s report, which showed that Bullcoming was intoxicated. Id. at 2711. The prosecution did not, however, call as a witness the analyst who performed the BAC test and generated its report. Id. at 2710-11. Instead, the prosecution attempted to call another analyst from the crime laboratory. Id. at 2712. That analyst had neither observed nor reviewed the work of the analyst assigned to Bullcoming s blood sample. Id. The trial court admitted the report under the business records exception to hearsay. Id. at 2712. Bullcoming was convicted, and he appealed to New Mexico s Supreme Court. Id. In light of Melendez-Diaz, which was decided while Bullcoming s appeal was pending, the court noted that the report was 10

indeed testimonial yet did not fun afoul of the Confrontation Clause. Id. In its decision, the lower court found that the analyst who generated the report merely recorded the test s results. Id. at 2714. The testing machine, the court said, was Bullcoming s true accuser and thus subject to confrontation. Id. The Supreme Court rejected this argument and explained: [The analyst s] certification, however, reported more than a machinegenerated number. [He] certified that he received Bullcoming's blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number correspond[ed], and that he performed on Bullcoming's sample a particular test, adhering to a precise protocol. He further represented, by leaving the [r]emarks section of the report blank, that no circumstance or condition... affect[ed] the integrity of the sample or... the validity of the analysis. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination. Id. (internal citations omitted). Next, the Bullcoming Court questioned whether a police officer who recorded a fact could send a colleague as her surrogate to testify about the recorded fact. Id. at 2714-15. In answering its own question, the Court said: As our precedent makes plain, the answer is emphatically No. Id. at 2715. The Court also rejected the New Mexico court s assertion that the surrogate analyst would satisfy the Confrontation Clause because the surrogate was a qualified expert in the crime laboratory s procedures and on its equipment. Id. The surrogate was not qualified to testify as to what procedures that the original analyst followed, i.e., the particular test and testing process he employed. Id. Finally, the Court again reiterated its strong commitment to the cross examination requirement outlined in Crawford: [T]he text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the 11

courts. 541 U.S., at 54, 124 S.Ct. 1354. Nor is it the role of courts to extrapolate from the words of the [Confrontation Clause] to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts views) those underlying values. Giles v. California, 554 U.S. 353, 375, 128 S.Ct. 2678, 171 L.Ed.2d 288 (2008). Accordingly, the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination. Id. at 2716. Therefore, the Court reversed the judgment against Bullcoming and remanded the case. Id. at 2719. Despite the Sixth Amendment s confrontation requirement, the Mississippi Supreme Court has ignored the mandate of Crawford in Jenkins v. State, 102 So. 3d 1063 (Miss. 2012) (holding that the Confrontation Clause was not violated by the testimony of a crime laboratory supervisor who testified in place of the forensic analyst who performed drug analysis) and Grim v. State, 102 So. 3d 1073 (Miss. 2012) (allowing a crime laboratory supervisor to testify about a forensic report because he had sufficient knowledge of the underlying analysis used to generate the report). Simply put, Jenkins and Grim are wholly in conflict with controlling United States Supreme Court caselaw. Both were an attempt to reconcile state caselaw in direct conflict with the United States Constitution and the repeated holdings of the United States Supreme Court. As this Court is undoubtedly well-aware, in such a conflict, the United States Supreme Court s holdings control. U.S. Const. Art. VI, Clause 2. In Grim, the supreme court relied on McGowen v. State, 859 So. 2d 320 (Miss. 2003) to conclude that there was no Crawford violation. Grim, 102 So. 3d at 1079. As Presiding Justice Dickinson noted in his dissent from the denial for Grim s motion for rehearing, [T]he majority s reliance on [McGowen] is completely misplaced, since that case was decided by this Court before the United States Supreme Court handed down 12

three landmark Confrontation Clause cases: Crawford, Melendez-Diaz, and Bullcoming. Id. at 1085-86 (Dickinson, P.J., dissenting to the denial of the motion for rehearing). Indeed, Crawford was a paradigm shift when it comes to assessing the constitutionality of confrontation clause violations. The Mississippi Supreme Court s reliance on pre-crawford state law to allow for surrogate testimony is misplaced. Doing so is akin to relying on pre-miranda state case law to stand for the fact that police do not have to give suspects warnings prior to custodial interrogation. In the instant case, the trial court also ignored the Crawford Court s mandate by admitting Maury Phillips s testimony into evidence. As an initial matter, Phillips s testimony about a crime lab report was clearly testimonial hearsay. Phillips submitted an out-of-court assertion that Thomas Graham performed the test indicated a bloodalcohol content of the sample. The only issue in dispute is whether Page had an opportunity to cross-examine the analyst who tested the substance. Unfortunately, Page never had the opportunity to cross examine her accuser. Phillips did not perform the test himself. He did not indicate that he supervised any tests that indicated the blood alcohol content of the blood sample. Phillips only said that he was a technical reviewer. Despite state court opinions to the contrary, the United States Supreme Court has never accepted technical reviewers as an exception to requirements of Crawford. As the Supreme Court explained in Melendez-Diaz, forensic evidence is not uniquely immune from the risk of manipulation. Melendez-Diaz, 55 U.S., at 318. Without an opportunity to cross-examine the person that performed the tests indicating blood-alcohol content, neither Page nor the trial court hearing the case against her could 13

be sure that the evidence sent to the crime lab was free from manipulation. Without such an opportunity, Page s Sixth Amendment rights were violated by Phillips s testimony. Furthermore, Phillips s testimony as a surrogate for this unknown analyst cannot suffice. Like the surrogate in Bullcoming, Phillips did not observe the analyst s testing or procedure. Or if he did, she did not testify to such a fact. As Bullcoming makes clear, a surrogate analyst who had no personal involvement with forensic testing cannot testify in place of the analyst who did. Phillips s testimony thus mirrors Bullcoming: Milam, who had no personal knowledge or involvement with the forensic testing, cannot speak on behalf of the analyst who did. To do so would conflict with the very purpose of the Confrontation Clause and Crawford s requirement of cross-examination - - to weed out fraudulent and incompetent forensic testing. In order to comport with the demands of the United States Constitution, this Court should depart from the Mississippi Supreme Court s misplaced path, and correctly apply United States Supreme Court caselaw. Because her conviction was premised on inadmissible testimony, this honorable Court should reverse Page s conviction and remand this case for a new trial. 14

CONCLUSION Page submits that based on the propositions cited and briefed herinabove, together with any plain error noticed by this Court which has not been specifically raised but may appear to the Court on a full review of the record, the judgment of the trial court and Page s conviction and sentence should be reversed and vacated, respectively, and this matter remanded to the lower court for further proceedings. Alternatively, this Court should render a verdict of not guilty. Respectfully submitted, Vanessa Page, Appellant /s Justin T. Cook Miss. Bar. 102622 Office of State Public Defender Indigent Appeals division Post Office Box 3510 Jackson, MS 39207 15

CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for the appellant, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Brief of the Appellant, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to the following ECF participants in this cause is made: Jason L. Davis Assistant Attorney General In addition, the following non-ecf participants are served by United States Mail, first class postage prepaid: Honorable Christopher L. Schmidt Circuit Judge P.O. Box 1461 Gulfport, MS 39506 Joel Smith, Esq. District Attorney P.O. Drawer 1180 Gulfport, MS 39502 THIS the 8th day of March, 2017 s/ Justin T. Cook Justin T. Cook, Miss Bar #102622 16