Opposition Brief — Jason Smith, Petitioner v. Arizona

No. 22–899

In the

Supreme Court of the United States

JASON SMITH,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari to the

Arizona Court of Appeals

BRIEF IN OPPOSITION

KRISTIN K. MAYES

Attorney General

of Arizona

DANIEL C. BARR

Chief Deputy

Attorney General

JOSHUA D. BENDOR

Solicitor General

ALEXANDER W.

SAMUELS

Principal Deputy

Solicitor General

(Counsel of Record)

ALICE M. JONES

Deputy Solicitor

General/Section Chief of

Criminal Appeals

DEBORAH CELESTE KINNEY

Assistant Attorney

General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

602.542.4686

alexander.samuels@azag.gov

Counsel for Respondent

i

QUESTION PRESENTED

Whether an expert witness’s testimony violated

the Confrontation Clause when he reasonably relied,

in part, on a former colleague’s notes and analysis

from within the same crime lab to reach an

independent opinion; the non-testifying expert’s

opinion and work-product were not admitted into

evidence; and the testifying expert was subject to

cross-examination.

ii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES.......................................iv

INTRODUCTION ........................................................1

STATEMENT OF THE CASE ....................................3

REASONS FOR DENYING THE PETITION ............7

I.

This Case Is A Poor Vehicle To Revisit

Williams .................................................................7

II. The Arizona Court of Appeals’ Unpublished

Decision

Correctly

Rejected

Smith’s

Confrontation Clause Claim ..................................9

III. Smith Overstates The Split Among

Jurisdictions ......................................................... 15

A. Smith minimizes the number of

jurisdictions that rely on Williams

favorably and/or employ its reasoning........... 16

B. The cases Smith cites that rejected the

Williams plurality’s rationale were often

presented with different facts ........................ 19

C. Smith’s second purported division does

not exist ........................................................... 21

CONCLUSION .......................................................... 22

iii

APPENDIX

Appendix 1

Unopposed Motion to Supplement

the Record on Appeal in the

Supreme Court of Arizona

(September 19, 2022) ............... App. 1

Appendix 2

Trial Exhibits (Photographs) .. App. 7

iv

TABLE OF AUTHORITIES

CASES

Ackerman v. State,

51 N.E.3d 171 (Ind. 2016), cert. denied,

137 S. Ct. 475 (2016) ............................................. 17

Bullcoming v. New Mexico,

564 U.S. 647 (2011) ........................... 5, 8, 10, 13, 14

California v. Ciraolo,

476 U.S. 207 (1986) .................................................9

Chavis v. State,

227 A.3d 1079 (Del. 2020), cert. denied,

141 S. Ct. 1528 (2021) .............................................1

Commonwealth v. Dyarman,

73 A.3d 565 (Pa. 2013), cert. denied,

134 S. Ct. 948 (2014) ...............................................2

Commonwealth v. Greineder,

984 N.E.2d 804 (Mass. 2013), cert. denied,

134 S. Ct. 166 (2013) ............................................. 21

Commonwealth v. Jones,

37 N.E.3d 589 (Mass. 2015) ...................... 19, 20, 21

Commonwealth v. LaLonde,

No. 3468 EDA 2012, 2014 WL 10965225

(Pa. Super. Ct. Apr. 28, 2014) ............................... 22

Commonwealth v. Yohe, II,

79 A.3d 520 (Pa. 2013), cert. denied,

572 U.S. 1135 (2014) ............................................. 16

Cooper v. State,

73 A.3d 1108 (Md. 2013), cert. denied,

134 S. Ct. 2723 (2014) .............................................1

Crawford v. Washington,

541 U.S. 36 (2004) ............................................. 9, 10

v

Ex parte v. Ware,

181 So. 3d 409 (Ala. 2014) ..................................... 17

Hingle v. State,

153 So.3d 659 (Miss. 2014) .................................... 16

Johnson v. State,

No. A-12744, 2019 WL 12044175 (Alaska Ct. App.

2019), cert. denied, 141 S. Ct. 112 (2020) ...............1

Leidig v. State,

256 A.3d 870 (Md. 2021) ................................. 19, 20

Malaska v. State,

88 A.3d 805 (Md. Ct. Spec. App. 2014),

cert. denied, 135 S. Ct. 1162 (2015) .......................2

Martin v. State,

60 A.3d 1100 (Del. 2013) .......................................19

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ............................................... 10

Monks v. New Jersey,

398 U.S. 71 (1970) ...................................................7

Moss v. State,

879 S.E.2d 821 (Ga. Ct. App. 2022) ................ 16, 17

People v. Barajas,

497 P.3d 1078 (Colo. Ct. App. 2021) ..................... 16

People v. Dungo,

286 P.3d 442 (Cal. 2012) ....................................... 20

People v. Lopez,

286 P.3d 469 (Cal. 2012) .......................................20

People v. Sanchez,

374 P.3d 320 (Cal. 2016) ................................. 19, 20

vi

People v. Stahl,

141 A.D.3d 962 (N.Y. App. Div. 2016),

cert. denied, 138 S. Ct. 222 (2017) ..........................1

Robbins v. State,

449 P.3d 1111 (Alaska Ct. App. 2019) .................. 17

Smith v. Mississippi,

373 U.S. 238 (1963) .................................................7

State ex rel. Montgomery v. Karp,

336 P.3d 753 (Ariz. Ct. App. 2014) .........................6

State v. Brewington,

743 S.E.2d 626 (N.C. 2013) ................................... 16

State v. Garcia,

No. 33,756, 2014 WL 2933211 (N.M. June 26,

2014)....................................................................... 22

State v. Griep,

863 N.W.2d 567 (Wis. 2015), cert. denied,

136 S. Ct. 793 (2016) ......................................... 1, 16

State v. Hall,

419 P.3d 1042 (Idaho 2018) ................................... 17

State v. Hutchinson,

482 S.W.3d 893 (Tenn. 2016) ................................ 16

State v. Jones,

220 So.3d 128 (La. Ct. App. 2017) ........................ 16

State v. Joseph,

283 P.3d 27 (Ariz. 2012) ........................................ 16

State v. Lopez,

45 A.3d 1 (R.I. 2012) .............................................. 16

State v. Maxwell,

9 N.E.3d 930 (Ohio 2014) ...................................... 17

vii

State v. McLeod,

66 A.3d 1221 (N.H. 2013) ...................................... 16

State v. Medicine Eagle,

835 N.W.2d 886 (S.D. 2013) .................................. 16

State v. Mercier,

87 A.3d 700 (Me. 2014) .......................................... 16

State v. Ortiz-Zape,

743 S.E.2d 156 (N.C. 2013), cert. denied,

134 S. Ct. 2660 (2014) ......................................... 1, 2

State v. Roach,

95 A.3d 683 (N.J. 2014) ................................... 16, 17

State v. Sauerbry,

447 S.W.3d 780 (Mo. Ct. App. 2014) ..................... 17

State v. Stanfield,

347 P.3d 175 (Idaho 2015), cert. denied,

136 S. Ct. 794 (2016) ...............................................1

State v. Tribble,

67 A.3d 210 (Vt. 2012) ........................................... 16

State v. Walker,

212 A.3d 1244 (Conn. 2019) .................................. 19

State v. Walker,

833 N.W.2d 872 (Table) (Wis. Ct. App. 2013),

cert. denied, 134 S. Ct. 2663 (2014) ........................1

United States v. Baas,

80 M.J. 114 (C.A.A.F. 2020), cert. denied,

141 S. Ct. 902 (2020) ...............................................1

United States v. Gomez,

725 F.3d 1121 (9th Cir. 2013) ............................... 18

viii

United States v. Katso,

74 M.J. 273 (C.A.A.F. 2015), cert. denied,

136 S. Ct. 1512 (2016) ....................................... 1, 18

United States v. Maxwell,

724 F.3d 724 (7th Cir. 2013) ...................................8

United States v. Murray,

540 F. App'x 918 (11th Cir. 2013) ......................... 16

United States v. Pablo,

696 F.3d 1280 (10th Cir. 2012) ............................. 18

United States v. Portillo,

969 F.3d 144 (5th Cir. 2020) ................................. 18

United States v. Richardson,

537 F.3d 951 (8th Cir. 2008) ................................. 18

United States v. Rios,

830 F.3d 403 (6th Cir. 2016) ................................. 18

United States v. Shanton,

513 F. App'x 265 (4th Cir. 2013) ........................... 17

United States v. Turner,

709 F.3d 1187 (7th Cir. 2013), cert. denied,

134 S. Ct. 2660 (2014) .............................................2

Williams v. Illinois,

567 U.S. 50 (2012) ................ 1, 2, 7, 8, 10-18, 20-22

Young v. United States,

63 A.3d 1033 (D.C. 2013)....................................... 19

RULES

Fed. R. Evid. 703 ....................................................... 10

1

INTRODUCTION

In a plurality opinion, this Court held in Williams

v. Illinois, 567 U.S. 50, 57–58 (2012), that the

Confrontation Clause does not prohibit testifying

experts from relying on the findings of non-testifying

experts in reaching their conclusions. Justice Thomas

concurred that there was no Confrontation Clause

violation, finding that the statements at issue “lacked

the requisite ‘formality and solemnity’ to be

considered ‘testimonial’ for purposes of the

Confrontation Clause.” Id. at 103–04. Smith asks this

Court to accept review and revisit Williams because,

he claims, a deep split among jurisdictions has

occurred in the wake of Williams. Pet. at 3.

Since Williams was decided, at least 13 other

litigants have filed petitions for writs of certiorari

raising similar arguments, and likewise encouraging

this Court to revisit Williams in cases involving

forensic analyst testimony. See Chavis v. State, 227

A.3d 1079 (Del. 2020), cert. denied, 141 S. Ct. 1528

(2021); United States v. Baas, 80 M.J. 114 (C.A.A.F.

2020), cert. denied, 141 S. Ct. 902 (2020); Johnson v.

State, No. A-12744, 2019 WL 12044175 (Alaska Ct.

App. 2019), cert. denied, 141 S. Ct. 112 (2020); People

v. Stahl, 141 A.D.3d 962 (N.Y. App. Div. 2016), cert.

denied, 138 S. Ct. 222 (2017); United States v. Katso,

74 M.J. 273 (C.A.A.F. 2015), cert. denied, 136 S. Ct.

1512 (2016); State v. Stanfield, 347 P.3d 175 (Idaho

2015), cert. denied, 136 S. Ct. 794 (2016); State v.

Griep, 863 N.W.2d 567 (Wis. 2015), cert. denied, 136

S. Ct. 793 (2016); Cooper v. State, 73 A.3d 1108 (Md.

2013), cert. denied, 134 S. Ct. 2723 (2014); State v.

Walker, 833 N.W.2d 872 (Table) (Wis. Ct. App. 2013),

cert. denied, 134 S. Ct. 2663 (2014); State v. OrtizZape, 743 S.E.2d 156 (N.C. 2013), cert. denied, 134

2

S. Ct. 2660 (2014); United States v. Turner, 709 F.3d

1187 (7th Cir. 2013), cert. denied, 134 S. Ct. 2660

(2014); Commonwealth v. Dyarman, 73 A.3d 565 (Pa.

2013), cert. denied, 134 S. Ct. 948 (2014); Malaska v.

State, 88 A.3d 805 (Md. Ct. Spec. App. 2014), cert.

denied, 135 S. Ct. 1162 (2015). In the face of

arguments similar to the ones made here, this Court

denied review each time.

This Court should similarly deny review here for

at least three primary reasons. First, this case is a

poor vehicle in which to revisit Williams because the

concerns voiced by the dissent in Williams were not a

factor in Smith’s case, and the key issues at trial were

not impacted by the analyst’s testimony. Second, in an

unpublished decision, the Arizona Court of Appeals

correctly rejected Smith’s confrontation challenge

based on Williams and the facts presented at trial.

Third, courts are not as divided as Smith claims––

several federal circuits and many state courts permit

expert testimony that relies on testing performed by

non-testifying analysts.

This Court should deny certiorari.

3

STATEMENT OF THE CASE

1. Factual background, trial, sentencing, and posttrial litigation. In December 2019, police executed a

search warrant at Smith’s father’s home. Pet. App. 3a.

The property consisted of a double-wide trailer, two

travel trailers, and a shed, which officers described as

a “makeshift room.” Id. at 3a–4a.

When officers arrived at the shed, they smelled an

“overwhelming odor of fresh marijuana and burnt

marijuana.” Id. at 3a. Police knocked on the front door

of the shed and announced their presence. Id. No one

answered. Id. After the second knock, Smith answered

the door. Id. at 4a. When Smith was subsequently

detained, he refused to put his hands behind his back,

yelling that the officers were “illegally trespassing”

and “harassing” him. Id. Smith continued yelling at

the officers until he was placed inside a police vehicle.

Id.

Eleven individuals were detained at the property,

two of whom were inside the shed with Smith. Id. The

shed contained a bed, a couch, clothing, a work bench,

a cabinet, and a small refrigerator. Id. During the

search of the shed, there was marijuana strewn

throughout, including nearly six pounds of marijuana

on a drying rack hanging from the ceiling. Id. Officers

also found a “joint,” a “meth pipe,” methamphetamine

inside a jacket, cannabis wax, and two scales. Id. The

total street value of all marijuana found was over

$50,000. Id. at 14a.

Arizona Department of Public Safety (“DPS”) Lab

Manager Jonathan Noble and Forensic Scientist

Elizabeth Rast performed the intake process for the

seized items. Id. at 40a. Rast also tested the items. Id.

4

at 41a. At the time of trial, Rast no longer worked for

DPS. Id. at 45a.

Before trial, DPS Forensic Scientist Greggory

Longoni reviewed the testing request form, intake

records, instruments and chemicals used, testing

methods, and testing results. Id. at 39a. At trial,

Longoni explained the testing processes followed by

forensic scientists at the DPS Lab to identify

marijuana, cannabis, and methamphetamine. Id. at

32a–38a. Before Longoni testified to his opinions,

defense counsel requested a side-bar. Id. at 42a.

Defense counsel said Longoni did not perform the

testing and asked for “leeway on cross-examination.”

Id. The prosecutor responded that Longoni formed his

own independent opinion and should be allowed to

testify to it. Id. at 42a–43a. Defense counsel then

requested to voir dire Longoni before he offered an

opinion. Id. at 43a. The court granted defense

counsel’s request. Id.

During voir dire, Longoni said that he did not test

any items in this case. Id. at 44a–45a. However, based

on a review of Rast’s notes, the scientific analysis

conducted, including graph results from gas

chromatograph mass spectrometer confirmatory

testing, the analytical protocols, and the DPS policies

and procedures used in all crime labs in Arizona,

Longoni formed his own independent opinion as to

what the seized substances were in this case. Id. at

35a, 37a–39a, 44a, 46a. Defense counsel objected to

Longoni’s opinion testimony, and that objection was

overruled. Id. at 45a. When direct examination

resumed, Longoni clarified he was not testifying as to

Rast’s report; he was testifying as to his own

“independent opinion.” Id. at 46a. Neither the report

nor the lab notes were admitted at trial. Id. at 12a.

5

Longoni independently concluded, based on his

“knowledge and training as a forensic scientist, [his]

knowledge and experience with DPS’s policies,

practices, procedures, [his] knowledge of chemistry,

the lab notes, the intake records, the chemicals used,

the tests done,” and the graphs used, that the seized

substances were usable quantities of marijuana,

methamphetamine, and cannabis. Id. at 42a, 46a–

49a.

After Longoni’s testimony, defense counsel moved

for a directed verdict under Rule 20 of the Arizona

Rules of Criminal Procedure. Id. at 55a–56a. Among

other things, defense counsel argued that Longoni’s

opinion was not independent, which defense counsel

acknowledged “probably goes to the weight of the

evidence, and we have a lot to say about that to the

jury.” Id. at 55a. The trial court denied the motion. Id.

at 56a–57a.

Defense counsel later renewed his Rule 20 motion,

relying on Bullcoming v. New Mexico, 564 U.S. 647

(2011), and arguing that Longoni’s testimony (and the

absence of Rast’s testimony) violated Smith’s

confrontation rights. Id. at 57a–59a. The court denied

the motion, reasoning that Bullcoming was

distinguishable because Longoni testified to his own

independent opinion. Id. at 62a.

The jury convicted Smith of possession of

marijuana for sale and possession of dangerous drugs,

narcotic drugs, and drug paraphernalia. Id. at 3a, 6a.

The trial court subsequently denied a motion for a

new trial (which raised many of the same arguments

detailed above) and sentenced Smith to an aggregate,

mitigated sentence of 4 years’ imprisonment. Id. at

18a–20a, 24a–25a.

6

2. The Arizona Court of Appeals rejects Smith’s

Confrontation Clause claim. On direct appeal, Smith

challenged Longoni’s testimony and argued the trial

court violated his right to confront the witnesses

against him when it allowed Longoni to testify about

his independent opinion based on data generated by

Rast. Pet. App. 3a. In a unanimous unpublished

decision, the Arizona Court of Appeals rejected

Smith’s claim. Id. at 10a–12a. The court first noted

that it had rejected a similar argument in State ex rel.

Montgomery v. Karp, 336 P.3d 753 (Ariz. Ct. App.

2014), where the testifying criminalist formed an

independent opinion about the defendant’s blood

alcohol concentration based on her review of a nontestifying criminalist’s notes and report. Pet. App.

10a–11a. In Smith’s case, the court found Longoni did

not act as a “mere conduit” because he “presented his

independent expert opinions permissibly based on his

review of Rast’s work, and he was subject to Smith’s

full cross-examination.” Id. at 11a (internal quotation

and citation omitted). And “when an expert gives an

independent opinion, the expert is the witness whom

the defendant has the right to confront.” Id. (citation

omitted). Because Smith was able to confront

Longoni, and the State did not admit Rast’s opinions,

no Confrontation Clause violation occurred. Id. at

11a–12a.

The Arizona Supreme Court denied review. 1 Id. at

1a. Smith now seeks a writ of certiorari.

1 Smith did not provide Rast’s report to the Court of Appeals for

its review. Instead, he later supplemented the record with the

report when he petitioned for review in the Arizona Supreme

Court. See Pet. App. 1a; Resp. App. 1–6.

7

REASONS FOR DENYING THE PETITION

I. This Case Is A Poor Vehicle To Revisit

Williams.

Even if this Court were inclined to revisit

Williams, this case is a poor vehicle to do so for several

reasons.

First, Smith asks this Court to compare Longoni's

testimony to Rast’s report. Pet. at 26. But, as noted,

this report was never admitted at trial; nor was it

before the Arizona Court of Appeals. Rather, the first

tribunal to ever receive Rast’s report was the Arizona

Supreme Court, which denied review of the case. See

Pet. App. 1a; Resp. App. 1–6. Nonetheless, Smith’s

Confrontation Clause claim relies on this report. In

arguing that the case is a good vehicle, for instance,

Smith argues that the report and notes “are part of

the record on appeal” and thus that this case is a good

vehicle because “this Court may review precisely the

same materials that Longoni reviewed and determine

for itself whether Longoni’s testimony impermissibly

related Rast’s testimonial statements to the jury.” Pet.

at 26. He ignores, however, that the report was not in

front of the Arizona Court of Appeals. He thus

encourages this Court to engage in review of that

report—which he says is important—in the first

instance. This Court should decline that invitation.

See Monks v. New Jersey, 398 U.S. 71 (1970)

(dismissing writ of certiorari as improvidently

granted where the state courts had no opportunity to

pass upon the petitioner’s claim regarding the

unconstitutional application of a state statute); see

also Smith v. Mississippi, 373 U.S. 238 (1963)

(dismissing writ as improvidently granted because

8

“the record [was] not sufficient to permit decision of

[the defendant’s] constitutional claims”).

Second, this case presents a fundamentally

different factual scenario than was presented by

Williams. In Williams, one reason the dissent declined

to follow the plurality’s rationale was its concern

about the witness’s ability to discuss the outside

laboratory’s testing procedures. 567 U.S. at 124–25

(noting that the testifying analyst “had no knowledge

at all of [the outside lab]’s operations”). By contrast,

in Smith’s case, a forensic scientist from the same lab

testified based on his personal knowledge and

professional experience and explained the lab’s

testing process for marijuana, cannabis, and

methamphetamine before offering his independent

opinion. Pet. App. 32–38a, 42a, 46a–49a.

Third, Smith’s case is not one where the scientific

evidence and subsequent testimony squarely

addressed the only contested issue at trial, such as

impairment in a DUI case, see Bullcoming, 564 U.S.

at 651, or the identity of an unknown rapist, see

Williams, 567 U.S. at 84. The core issue at Smith’s

trial was whether Smith knowingly possessed the

contraband, not whether the contraband was actually

marijuana, cannabis, and methamphetamine. See

Pet. App. 5a–6a, 15a; see also United States v.

Maxwell, 724 F.3d 724, 728 (7th Cir. 2013) (noting in

rejecting confrontation challenge that “[t]here was no

question … about the type of drugs being distributed”

and the defendant only cross-examined the expert “on

the weight—not the composition—of the drugs

because he was focused solely on showing his lack of

intent to distribute”) (emphasis in original).

9

Fourth, Smith cannot demonstrate prejudice from

Longoni’s testimony because it was not needed for his

possession of marijuana for sale conviction, the felony

for which he received the longest sentence of

imprisonment. Pet. App. 17a–23a. At trial, the officers

testified that they smelled an “overwhelming odor of

fresh marijuana and burnt marijuana” upon

approaching the shed. Pet. App. 3a. Once inside, the

officers found, inter alia, several pounds of marijuana

on a drying rack hanging from the ceiling. Pet. App.

4a; Resp. App. 7–10. Based on the officers’ testimony,

the photographs admitted at trial, and Smith’s

behavior at the scene, the jurors could have

determined Smith possessed marijuana for sale

without Longoni’s testimony. See Pet. App. 14a–15a

(the Arizona Court of Appeals reasoning that the

strong odor of marijuana, Smith’s behavior, and his

trespassing accusations showed his knowledge of the

contraband); see also California v. Ciraolo, 476 U.S.

207, 213 (1986) (stating that officers within public

airspace “were able to observe plants readily

discernible to the naked eye as marijuana”).

Thus, Smith’s case, in which the Arizona Supreme

Court denied review of the Arizona Court of Appeals’

unpublished decision, is not the “ideal vehicle” for

granting review.

II. The Arizona Court of Appeals’ Unpublished

Decision

Correctly

Rejected

Smith’s

Confrontation Clause Claim.

Setting aside the vehicle problems presented here,

review is unwarranted because the Arizona Court of

Appeals got it right. The Confrontation Clause is

implicated by “testimonial” statements of nontestifying witnesses. Crawford v. Washington, 541

10

U.S. 36, 59 (2004). Since Crawford, this Court has

several times addressed the Confrontation Clause

implications of lab-generated evidence.

First, in Melendez-Diaz, where the State admitted

three “certificates of analysis” to prove that a

substance was cocaine, and where the State presented

no live witnesses, this Court held that the

Confrontation Clause was violated. Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 308, 310–11, 329 (2009)

(holding that certificates were testimonial and were

“functionally identical to live, in-court testimony,

doing precisely what a witness does on direct

examination”) (internal quotation marks and citation

omitted).

Subsequently, in Bullcoming, this Court held that

the Confrontation Clause did not permit “the

prosecution to introduce a forensic laboratory report

containing a testimonial certification––made for the

purpose of proving a particular fact––through the incourt testimony of a scientist who did not sign the

certification or perform or observe the test reported in

the certification.” 564 U.S. at 652.

Neither Bullcoming nor Melendez-Diaz were cases

“in which an expert witness was asked for his

independent opinion about underlying testimonial

reports that were not themselves admitted into

evidence.” Bullcoming, 564 U.S. at 673 (Sotomayor, J.,

concurring) (citing Fed. R. Evid. 703).

Thereafter, in Williams, this Court was tasked

with deciding whether the defendant’s confrontation

rights were violated when an analyst testified that the

defendant’s DNA matched swabs from the victim’s

rape kit based on a DNA profile an outside laboratory

created from those swabs. 567 U.S. at 59–62. Five

11

justices concluded that this complied with the

Confrontation Clause. Id. at 84–86, 93, 103–04. The

plurality reasoned that “[o]ut-of-court statements

that are related by the expert solely for the purpose of

explaining the assumptions on which [their] opinion

rests are not offered for their truth and thus fall

outside the scope of the Confrontation Clause.” Id. at

58. As the plurality highlighted, “[f]or more than 200

years, the law of evidence has permitted the sort of

testimony that was given by the expert in this case.” 2

Id. at 57.

In reaching its conclusion, this Court emphasized

the distinction between whether a defendant’s

confrontation rights were violated and whether

sufficient foundational evidence supported the

expert’s opinion. Id. at 75. In rejecting an argument

that the State had “somehow introduced the

substance of [the] report into evidence,” the Court

noted that the argument seemed to be rooted in “the

(erroneous) view that unless the substance of the

report was sneaked in, there would be insufficient

evidence in the record” concerning the origin of the

swabs and the reliability of the outside laboratory’s

procedures. Id. (internal quotation marks omitted).

Not only was the concern “factually incorrect,” this

Court found it was “legally irrelevant” because the

issue before the Court was whether a Confrontation

2 Although less relevant here, the Court independently concluded

that no Confrontation Clause violation had occurred because the

underlying report was “very different from the sort of

extrajudicial statements, such as affidavits, depositions, prior

testimony, and confessions, that the Confrontation Clause was

originally understood to reach.” Id. The outside laboratory’s

report was created before a suspect had been identified and was

thus non-testimonial because it was not generated to be used as

evidence against the defendant. Id.

12

Clause violation had occurred, and not whether

sufficient foundational evidence had been presented

to support the expert’s opinion. Id.

Justice Thomas concurred with the plurality’s

conclusion––that there was no Confrontation Clause

violation––albeit for a different reason. Id. at 103–04.

He found that the statements at issue “lacked the

requisite ‘formality and solemnity’ to be considered

‘testimonial’ for purposes of the Confrontation

Clause.” Id. As Justice Thomas reasoned, “the

Confrontation Clause reaches formalized testimonial

materials, such as depositions, affidavits, and prior

testimony, or statements resulting from formalized

dialogue such as custodial interrogation.” Id. at 111

(cleaned up).

Justice Breyer wrote a separate concurring

opinion, which also supports the State’s position in

this case. Id. at 86–99. In determining that there was

no confrontation problem, he noted the “traditional

rule” that allows experts to rely on an unadmitted

forensic report authored by another to “indicate the

underlying factual information upon which she based

her independent expert opinion.” Id. at 88. Justice

Breyer reasoned that “[o]nce one abandons the

traditional rule, there would seem often to be no

logical stopping place between requiring the

prosecution to call as a witness one of the laboratory

experts who worked on the matter and requiring the

prosecution to call all of the laboratory experts who

did so.” Id. at 89 (emphasis in original). Further, he

noted that “[e]xperts–especially laboratory experts–

regularly rely on the technical statements and results

of other experts to form their own opinions.” Id. Lower

courts and treatise writers have thus long-recognized

that a “substitute expert” may testify “if the original

13

test was documented in a thorough way that permits

the substitute expert to evaluate, assess, and

interpret it.” Id. at 91 (internal quotation marks and

citation omitted).

Justice Breyer also noted that “[t]he defendant

would remain free to call laboratory technicians as

witnesses” and that “the need for cross-examination is

considerably diminished when the out-of-court

statement was made by an accredited laboratory

employee operating at a remove from the

investigation in the ordinary course of professional

work.” Id. at 93, 95.

Four justices dissented, arguing that the

statements underlying the expert’s opinion were

necessarily offered for their truth and that the expert

witness “‘could not convey what the actual analyst

knew or observed about the events …, i.e., the

particular test and testing process he employed.’” Id.

at 120, 124, 126–29 (quoting Bullcoming, 564 U.S. at

661).

Here, the State’s presentation of evidence at

Smith’s trial complied with the Confrontation Clause

and this Court’s jurisprudence. The State did not

simply admit a report into evidence and call it quits.

Cf. Melendez-Diaz, 557 U.S. at 308. Nor did the State

call a surrogate expert who was unfamiliar with the

underlying analysis for the sole purpose of admitting

a certified report. Cf. Bullcoming, 564 U.S. at 653–56.

Rather, the State offered testimony from another

expert from the same lab who regularly conducts the

same testing, and who reviewed all of the records in

the case, analyzed them, and formed his own opinion.

See Pet. App. 26a, 30a–31a, 39a, 42a, 46a–49a; see

also Bullcoming, 564 U.S. at 673 (Sotomayor, J.,

14

concurring) (noting that a fact pattern like the one

present here was not present in Bullcoming).

At trial, Longoni explained the lab’s processes, the

testing methods used by the lab for the respective

contraband, and his independent opinions based, inter

alia, on the testing methods he described. Pet. App.

32a–38a, 42a, 46a–49a. Longoni, who did not work at

an outside laboratory, had personal knowledge of the

lab’s procedures and answered questions from Smith’s

counsel at trial regarding the same. Pet. App. 49a–

53a; cf. Williams, 567 U.S. at 134 n.4 (Kagan, J.,

dissenting) (arguing that the “problem” present was

“that no analyst came forward to testify”) (emphasis

in original).

Importantly, Rast’s report was not admitted, nor

were her conclusions. Pet. App. 12a. Consequently,

the jury was not informed about Rast’s opinion;

rather, Longoni’s opinion was the only opinion for the

jury to consider. Accordingly, Longoni, not Rast, was

the witness Smith was entitled to confront.

And contrary to what Smith suggests, Longoni did

not merely serve as a conduit for Rast’s conclusions.

During voir dire, Longoni was asked if his conclusion

was based on Rast’s report and he explained that his

conclusion was based on “the notes …, the scientific

analysis and the analytical protocols[.]” Pet. App. 44a.

After voir dire, Longoni affirmed that he was “not

testifying as to [Rast’s] report,” but was merely

“testifying as to [his] review of [Rast’s] lab notes.” Pet.

App. 46a. Thereafter, Longoni merely refreshed his

recollection with the report, the same as any other

witness, when he was asked a question about a testing

method. Pet. App. 46a, 48a.

15

In other words, the only forensic expert witness

who provided evidence against Smith was Longoni.

Smith was able to confront Longoni; indeed, Smith’s

counsel had the opportunity to question Longoni in

voir dire and on cross-examination, including as to his

lack of personal involvement in the testing. Pet. App.

43a–45a, 49a–54a. Neither Rast’s report nor her

conclusions were admitted at trial. Instead, Rast’s

analysis merely formed the basis of Longoni’s

independent opinions.

At bottom, Smith’s objection is less about the right

to confront a witness (since Smith was afforded that

right) than it is about whether the witness he did

confront had adequate foundation to provide an

admissible or credible expert opinion that the drugs

were marijuana, cannabis, and methamphetamine.

See Williams, 567 U.S. at 75. This is evidenced by

defense counsel’s request to voir dire Longoni before

he offered his expert opinion to explore “[h]ow he

formed an opinion.” Pet. App. 43a. But any such

foundation objection is not only misplaced, but also

“legally irrelevant” to a Confrontation Clause claim.

Williams, 567 U.S. at 75. The Arizona Court of

Appeals got it right in analyzing Smith’s

Confrontation Clause claim, and this Court should

deny review.

III.

Smith Overstates

Jurisdictions.

The

Split

Among

State and federal courts generally allow

independent expert testimony that relies on data or

analysis generated by other non-testifying analysts.

Indeed, several federal circuits and many states have

permitted such testimony in the wake of Williams.

Moreover, several cases cited by Smith that have

16

declined to follow Williams

distinguishable facts.

were

decided

on

A. Smith

minimizes

the

number

of

jurisdictions that rely on Williams

favorably and/or employ its reasoning.

Smith concedes that Arizona, Maine, Tennessee,

Mississippi, Vermont, and the Eleventh Circuit have

adopted the Williams plurality’s rationale and that

New Hampshire and North Carolina have “indirectly

applied it.” Pet. at 17–18 (citing State v. Joseph, 283

P.3d 27, 30 ¶ 12 (Ariz. 2012); State v. Mercier, 87 A.3d

700, 704 (Me. 2014); State v. Hutchinson, 482 S.W.3d

893, 914 (Tenn. 2016); Hingle v. State, 153 So.3d 659,

664–65 (Miss. 2014); State v. Tribble, 67 A.3d 210,

217–18 (Vt. 2012); United States v. Murray, 540 F.

App’x 918, 921 (11th Cir. 2013); State v. McLeod, 66

A.3d 1221, 1230–32 (N.H. 2013); State v. Brewington,

743 S.E.2d 626, 628 (N.C. 2013)).

Other states, too, have likewise relied on Williams

or adopted similar reasoning in rejecting

Confrontation Clause challenges similar to the one

here. See State v. Jones, 220 So.3d 128, 135–36 (La.

Ct. App. 2017); People v. Barajas, 497 P.3d 1078,

1085–88 (Colo. Ct. App. 2021); State v. Roach, 95 A.3d

683, 695–97 (N.J. 2014); Commonwealth v. Yohe, II,

79 A.3d 520, 540–41 (Pa. 2013), cert. denied, 572 U.S.

1135 (2014); State v. Lopez, 45 A.3d 1, 13–14 (R.I.

2012); State v. Medicine Eagle, 835 N.W.2d 886, 895–

99 (S.D. 2013); State v. Griep, 863 N.W.2d 567, 583–

84 (Wis. 2015), cert. denied, 577 U.S. 1061 (2016).

Additional states have reached similar conclusions in

evaluating cases where a supervisor of the testing

analyst testified at trial. See Robbins v. State, 449

P.3d 1111, 1115–16 (Alaska Ct. App. 2019); Moss v.

17

State, 879 S.E.2d 821, 828–29 (Ga. Ct. App. 2022);

State v. Hall, 419 P.3d 1042, 1076 (Idaho 2018); Ex

parte v. Ware, 181 So. 3d 409, 416–17 (Ala. 2014); see

also Roach, 95 A.3d at 695–97 (detailing why the

analysis for a testifying supervisor and a testifying

colleague who conducted an independent review is no

different). And still more states have approved of

testimony like the testimony offered in this case in

evaluating different, but similar, fact patterns. See,

e.g., Ackerman v. State, 51 N.E.3d 171, 189 (Ind. 2016)

(“[E]ven if the autopsy report was inadmissible, Dr.

Hawley could have still testified to his own

independent opinion based upon his review of the

autopsy report.”), cert. denied, 137 S. Ct. 475 (2016);

State v. Sauerbry, 447 S.W.3d 780, 785, 788–89 (Mo.

Ct. App. 2014) (rejecting confrontation challenge

“where a testifying examiner relates his or her own

opinions based on another

medical examiner’s

observations during an autopsy”); State v. Maxwell, 9

N.E.3d 930, 949 (Ohio 2014) (similarly allowing

“independent opinion” testimony from medical

examiner who did not perform autopsy).

In the federal system, while only the Eleventh

Circuit has expressly adopted the Williams plurality’s

rationale, several circuits and the U.S. Court of

Appeals for the Armed Forces have allowed forensic

expert opinion testimony that relies upon data or

analysis from other sources. See United States v.

Shanton, 513 F. App’x 265, 266–67 (4th Cir. 2013)

(concluding after post-Williams remand from this

Court that DNA expert’s testimony that relied, in

part, on analysis from other experts did not violate the

Confrontation Clause); Maxwell, 724 F.3d at 725–27

(rejecting on plain error review a confrontation

challenge where the drug testing was conducted by a

18

retired analyst from the same lab); United States v.

Richardson, 537 F.3d 951, 959–60 (8th Cir. 2008)

(finding no plain error where the testifying analyst’s

“testimony concerned her independent conclusions

derived from another scientist’s tests results”); United

States v. Pablo, 696 F.3d 1280, 1283–95 (10th Cir.

2012) (concluding post-Williams that the expert’s

DNA testimony, which relied upon two other analysts’

reports, did not amount to plain error); United States

v. Katso, 74 M.J. 273, 282–84 (C.A.A.F. 2015) (finding

a reviewing lab technician’s testimony did not violate

the Confrontation Clause because he “presented his

own expert opinion at trial, which he formed as a

result of his independent review”), cert. denied, 136 S.

Ct. 1512 (2016); see also United States v. Portillo, 969

F.3d 144, 170 (5th Cir. 2020) (concluding on plain

error review that law enforcement expert’s testimony,

which relied on hearsay statements to support

conclusions, did not violate the Confrontation Clause);

United States v. Rios, 830 F.3d 403, 417–19 (6th Cir.

2016) (rejecting confrontation challenge where

“expert exercises independent judgment in assessing

and using the hearsay (and other sources) to reach an

expert opinion”) (internal quotation marks and

citation omitted); United States v. Gomez, 725 F.3d

1121, 1130 (9th Cir. 2013) (rejecting on plain error

review a confrontation challenge where the testimony

required “some level of independent judgment” from

the officer) (emphasis in original).

Thus, a strong consensus exists that expert

witnesses may rely on data, analysis, and statements

from others that are not admitted in evidence in

forming their own independent opinions without

violating the Confrontation Clause. Moreover, as is

discussed below, even the six jurisdictions cited by

19

Smith do not generate as clear of a split in authority

as Smith suggests.

B. The cases Smith cites that rejected the

Williams plurality’s rationale were often

presented with different facts.

Confrontation Clause cases in this arena are often

fact-dependent. For example, some involve reports

from a non-testifying expert that were admitted,

while others (like Smith’s case) do not. These and

other factual idiosyncrasies can matter.

Some of the cases upon which Smith relies in

arguing that there is a significant split in jurisdictions

are factually distinguishable from his case. It is not

clear that even the courts Smith points to would grant

him relief. Smith relies on People v. Sanchez, 374 P.3d

320, 333 (Cal. 2016); Martin v. State, 60 A.3d 1100,

1107 (Del. 2013); Young v. United States, 63 A.3d

1033, 1045 (D.C. 2013); State v. Walker, 212 A.3d

1244, 1260 (Conn. 2019); Commonwealth v. Jones, 37

N.E.3d 589, 597 (Mass. 2015); and Leidig v. State, 256

A.3d 870, 900 (Md. 2021). Pet. at 14–17. Several of

those cases involved distinguishable facts.

In Walker, for example, the court emphasized that

its holding was limited to the unique circumstances of

that case. 212 A.3d at 1246, 1251, 1257. And those

circumstances included that the testifying analyst

swore to the accuracy of DNA profiles provided to her

for testing, and that the testifying analyst’s report—

which

was

admitted—included

out-of-court

statements by non-testifying analysts. Id. at 1255.

In Leidig, a DNA report prepared by a nontestifying expert was admitted, and the DNA evidence

was the only evidence linking the defendant to the

20

crime. 256 A.3d at 872. Moreover, Leidig was decided

on state constitutional grounds. Id. at 898–908. On

multiple fronts, it thus fails to provide the clean split

of authority that Smith alleges.

Smith’s other cases also illustrate a more

complicated picture than Smith suggests. Sanchez, for

example, did not analyze scientific data, and the

expert relayed pure hearsay to the jury. 374 P.3d at

324. Sanchez involved a gang expert who reviewed

police reports and other police records concerning the

defendant’s prior police contacts to support his

conclusions that the defendant was in a gang and the

gang benefitted from his criminal activity. Id. at 325.

The court in Sanchez found the defendant’s

confrontation rights were violated because the officer

testified about information known only by reading

another officer’s police reports, which were entirely

“hearsay information” and testimonial. Id. at 340–44.

In reaching that conclusion, however, the

California Supreme Court noted that it had already

applied Williams in the context of scientific testimony

in two companion cases—People v. Lopez, 286 P.3d

469 (Cal. 2012), and People v. Dungo, 286 P.3d 442

(Cal. 2012). 374 P.3d at 338–39. Both cases found no

Confrontation Clause violation. See id.

Lastly, the testimony at issue in Jones pertained

to an entirely different type of evidence than was

admitted at Smith’s trial. In Jones, the issue “involved

the circumstances under which the evidence that the

testifying expert tested was collected in the first

place.” 37 N.E.3d at 598. At trial, the State failed to

call the nurse who collected the “‘rape kit’” as a

witness nor alleged that she was unavailable. Id. at

595. Instead, the State presented an expert, who was

21

not present during the examination and did not have

any connection to the hospital where the swabs were

taken, “to testify to her ‘understanding’ of how the

three swabs had been collected.” Id. In concluding the

defendant’s confrontation rights were violated, the

Court reasoned that the expert had no personal

knowledge about how the swabs were collected. Id. at

598. The Court analogized the situation to one where

a chemist testifies as to how the police collected

suspected cocaine from a defendant’s pants pocket. Id.

And the court emphasized that it was not confronted

with a case “where a testifying analyst reviewed and

then built on the findings of a nontestifying analyst in

reaching his or her expert opinion.” Id. at 598. Indeed,

post-Williams, the same court has previously

approved of testimony where “the testifying analyst

‘reviewed the nontestifying analyst’s work, …

conducted an independent evaluation of the data,’ and

‘then expressed her own opinion, and did not merely

act as a conduit for the opinions of others.’” Id. at 597–

98 (quoting Commonwealth v. Greineder, 984 N.E.2d

804 (Mass. 2013), cert. denied, 134 S. Ct. 166 (2013)).

This case thus differs critically from many relied

upon by Smith, whose purported division in authority

is at best overstated.

C. Smith’s second purported division does

not exist.

Smith also claims that courts are divided over the

Williams plurality’s “rationale” that a criminal

defendant can subpoena a witness who participated in

forensic testing. Pet. at 19. But this notation in

Williams did not underpin its conclusion that there

was no Confrontation Clause violation.

22

Rather, after announcing its “conclusion,” the

plurality simply noted that a defendant is not

prejudiced when the State does not call all the

witnesses involved in forensic testing “because those

who participated in the testing may always be

subpoenaed by the defense and questioned at trial.”

Williams, 567 U.S. at 58–59. Likewise, the three

unpublished cases Smith cites for a purported division

simply note that a defendant may seek to subpoena a

witness who was involved in forensic testing if he

believes such testimony will be helpful to his case. See

Pet. at 20; Pet. App. 12a (“Had Smith sought to

challenge Rast’s analysis, he could have called her to

the stand and questioned her, but he chose not to do

so.”); see also State v. Garcia, No. 33,756, 2014 WL

2933211, at *4 (N.M. June 26, 2014) (finding no

Confrontation Clause violation, and then noting that

if the defendant wanted to call as witnesses the two

physicians who performed the autopsy, he was free to

call them as witnesses for the defense);

Commonwealth v. LaLonde, No. 3468 EDA 2012, 2014

WL 10965225, at *12–13 (Pa. Super. Ct. Apr. 28, 2014)

(finding no Confrontation Clause violation, and then

noting “[l]ast” that “nothing prevented Defendant

from subpoenaing [lab] technicians as witnesses if he

truly wanted to question them regarding their

laboratory practices”). This fact does not appear to

have been a critical underpinning of the conclusions

in those cases.

CONCLUSION

The petition for writ of certiorari should be denied.

23

June 26, 2023

Respectfully submitted,

KRISTIN K. MAYES

Attorney General

of Arizona

ALICE M. JONES

Deputy Solicitor

General/Section Chief of

Criminal Appeals

DANIEL C. BARR

Chief Deputy

Attorney General

DEBORAH CELESTE KINNEY

Assistant Attorney General

JOSHUA D. BENDOR

Solicitor General

ALEXANDER W.

SAMUELS

Principal Deputy

Solicitor General

(Counsel of Record)

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

602.542.4686

alexander.samuels@azag.gov

Counsel for Respondent

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix 1 Unopposed Motion to Supplement the

Record on Appeal in the Supreme

Court of Arizona

(September 19, 2022) . . . . . . . . . . App. 1

Appendix 2 Trial Exhibits (Photographs) . . . . App. 7

App. 1

APPENDIX 1

SUPREME COURT OF ARIZONA

Supreme Court No. CR-22-0202-PR

Court of Appeals Division One

No. 1 CA CR 21-0451

Yuma County Superior Court

No. S1400CR201901251

[Filed September 19, 2022]

___________________________

JASON SMITH,

)

Petitioner/Appellant, )

)

v.

)

)

STATE OF ARIZONA,

)

Respondent/Appellee. )

__________________________ )

Administrative Motion

UNOPPOSED MOTION TO SUPPLEMENT

THE RECORD ON APPEAL

Diane M. Johnsen, Bar No. 007634

PERKINS COIE LLP

2901 North Central Avenue

Suite 2000

Phoenix, Arizona 85012-2788

Telephone: +1.602.351.8000

DJohnsen@perkinscoie.com

Docketphx@perkinscoie.com

App. 2

Hari Santhanam, Bar No. 6296508

(pro hac vice application pending)

PERKINS COIE LLP

110 North Wacker Drive, Suite 3400

Chicago, Illinois 60606-1511

Telephone: +1.312.324.8400

Facsimile: +1.312.324.9400

HSanthanam@perkinscoie.com

Local Counsel – ARIZ. SUP. CT. R. 39

Robert Trebilcock, Bar No. 012004

Deputy Public Defender

Office of Yuma County Public

Defender

168 South 2nd Avenue

Yuma, Arizona 85364

Telephone: +1.928.817.4600

Facsimile: +1.928.373.1120

Robert.Trebilcock@yumacountyaz.gov

Attorneys for

Jason Smith

Petitioner/Appellant

Pursuant to Rules 31.8(a)(2)(C) and (g)(3), Arizona

Rules of Criminal Procedure, Petitioner/Appellant

Jason Smith respectfully moves to supplement the

record to include the report and notes of the forensic

analyst who tested the evidence items in Smith’s case.

These documents, which the State produced and

identified on its trial exhibit list and which its expert

referenced at trial, underlie the Confrontation Clause

issue raised by Smith’s Petition for Review (“Petition”).

In connection with the Petition, Smith has filed an

Appendix that includes the analyst’s report (APP91-92)

App. 3

and notes (APP93-121), to which is appended the

request by local law enforcement to have the evidence

tested (APP122-123).1 Out of an abundance of caution,

Smith moves to formally include these documents in

the record. Counsel for the State has stated that they

do not oppose this Motion.

BACKGROUND

The factual background of this case is set forth in

more detail in Smith’s Petition and is addressed only

briefly here as it is relevant to the present Motion. To

prove the drug-related charges against Smith, the

State had the alleged drug evidence tested by a crime

lab operated by the Arizona Department of Public

Safety (“DPS”). APP122. Elizabeth Rast, then a DPS

forensic scientist, did the testing. APP93. Rast

prepared and signed a report of her conclusions

(APP91-92) and kept notes to which she attached

charts of results from certain analyses and the State’s

testing request (APP93-121).

Before trial, the State produced Rast’s report and

notes, identifying them as State’s Exhibits 97 and 98,

and indicated that it would call Rast as an expert

witness. APP124-125. By the time of trial, Rast was no

longer employed with DPS, and the State disclosed it

would instead call a “substitute” expert, DPS forensic

scientist Gregory Longoni, to introduce the results of

Rast’s analyses. APP127. Smith objected that Longoni

could offer no truly independent opinion and that his

testimony therefore violated the Confrontation Clause,

1

References to “APP” are to the Appendix filed with the Petition.

App. 4

but the trial court overruled his objection. APP51:1524, APP53:13-20, APP54:1-60:1. Smith then renewed

his objection in an unsuccessful motion for a new trial.

APP129, APP133.

Smith continued to maintain his Confrontation

Clause objection on appeal and included Rast’s notes in

an appendix he submitted with his opening brief to the

Court of Appeals. The Court of Appeals substantively

decided the Confrontation Clause issue Smith raised

and, in its analysis, referenced Rast’s “work-product

documents” on which Longoni relied. APP10, ¶ 19.

ARGUMENT

Under Rule 31.8(a)(1), the record on appeal includes

the index prepared by the Superior Court clerk, all

documents filed or introduced into evidence at the

Superior Court, and certified transcripts of oral

proceedings before the Superior Court. ARIZ. R. CRIM.

P. 31.8(a)(1). Documents “other than those listed in

[subsection] (a)(1)” “may be added to the record on

appeal only by order of the appellate court,” which the

appellate court “may enter . . . at any time.”ARIZ. R.

CRIM. P. 31.8(a)(2)(C); see also ARIZ. R. CRIM.

P. 31.8(g)(3) (permitting appellate court to address

parties’ requests as to form and content of the record).

Under the circumstances here, this Court should order

that Rast’s report and notes (including the appended

charts and the State’s request for testing), reproduced

in Smith’s Appendix at APP91-92, APP93-121, and

APP122-123, respectively, be included in the record.

App. 5

The State produced and identified Rast’s report and

notes as Exhibits 97 and 98, respectively. Though they

were not admitted at trial, the State’s expert, Longoni,

repeatedly referenced Rast’s notes and report during

his trial testimony. In ruling on Smith’s Confrontation

Clause objection, the Superior Court had Rast’s report

and her notes available to it. Similarly, the Court of

Appeals had before it an appendix containing at least

Rast’s notes, which included the full substance of her

report. And in its opinion, the Court of Appeals

referenced Rast’s “work-product documents” on which

Longoni relied. APP10, ¶ 19.

Further, Smith’s Petition asks this Court to address

whether, and to what extent, a substitute expert may

testify based solely on a nontestifying analyst’s written

materials. In considering this issue, this Court would

benefit from a full record containing the notes and

report that formed the basis of the State’s expert

testimony in this case.

CONCLUSION

For the foregoing reasons, this Court should

supplement the record with Rast’s report and notes and

the request for testing, found in Smith’s Appendix to

his Petition at APP91-92, APP93-121, and APP122-123,

respectively.

September 19, 2022

App. 6

Respectfully submitted,

PERKINS COIE LLP

By:

s/ Diane M. Johnsen

Diane M. Johnsen, Bar No. 007634

2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

Telephone: +1.602.351.8000

DJohnsen@perkinscoie.com

Docketphx@perkinscoie.com

Hari Santhanam, Bar No. 6296508

(pro hac vice application pending)

PERKINS COIE LLP

110 North Wacker Drive, Suite 3400

Chicago, Illinois 60606-1511

Telephone: +1.312.324.8400

HSanthanam@perkinscoie.com

Local Counsel – ARIZ. SUP. CT. R. 39

Robert Trebilcock, Bar No. 012004

Deputy Public Defender

Office of Yuma County Public Defender

168 South 2nd Avenue

Yuma, Arizona 85364

Telephone: +1.928.817.4600

Robert.Trebilcock@yumacountyaz.gov

Attorneys for Petitioner/Appellant Jason

Smith

App. 7

APPENDIX 2

App. 8

App. 9

App. 10