No. _________
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------VANESSA STUART,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.
-----------------------------------------------------------------On Petition For Writ Of Certiorari To The
Court Of Criminal Appeals Of Alabama
-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI
-----------------------------------------------------------------SAM HELDMAN
THE GARDNER FIRM
2805 31st St. NW
Washington DC 20008
(202) 965-8884
sheldman@gmail.com
Counsel of Record

JOHN W. BECK
P.O. Box 931
Fairhope AL 36533

================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
QUESTION PRESENTED
In this criminal case, the Alabama courts permitted the introduction into evidence of a State laboratory
employee’s formal, official, written “reports” to law enforcement, regarding blood alcohol test results concerning blood of the Petitioner (who was listed as the
“suspect” in the reports). Those reports were accepted
into evidence for the truth of the matters asserted
therein: i.e., as evidence of her blood alcohol level. The
Alabama courts allowed this even though there was no
testimony from the person who performed the test and
signed the reports, nor even testimony from any other
witness who was personally involved in the testing of
the blood samples in question.
The question is whether the decision below is contrary to Bullcoming v. New Mexico, 564 U.S. 647 (2011).
It is, and the Court should summarily reverse.

 ii
PARTIES TO THE PROCEEDING BELOW
The parties are listed in the caption: Vanessa Stuart
(who has since legally changed her name to Vanessa
American Horse), and the State of Alabama.

 iii
TABLE OF CONTENTS
Page
Question Presented ...............................................

i

Parties to the Proceeding Below ............................

ii

Petition for Writ of Certiorari ................................

1

Opinions Below .......................................................

1

Jurisdiction .............................................................

1

Constitutional Provision Involved .........................

2

Statement of the Case ............................................

2

Reasons for Granting the Writ and for Summarily
Reversing .............................................................

5

Conclusion ...............................................................

12

APPENDIX:
Decision of Alabama Court of Criminal Appeals .......1a
Order of Alabama Court of Criminal Appeals
denying rehearing .................................................20a
Order of Supreme Court of Alabama denying review ........................................................................21a

 iv
TABLE OF AUTHORITIES
Page
CASES
Bullcoming v. New Mexico, 564 U.S. 647
(2011) ............................................................... passim
Chambers v. State, 181 So. 3d 429 (Ala. Crim.
App. 2015) ..................................................................9
Williams v. Illinois, 567 U.S. 50 (2012) ........................8
CONSTITUTIONAL PROVISION
United States Constitution, Sixth Amendment ..........2
STATUTE
18 U.S.C. § 1257(1) ........................................................1

 1
PETITION FOR WRIT OF CERTIORARI
Petitioner Vanessa Stuart respectfully prays that
a writ of certiorari issue to review the decision of the
Alabama Court of Criminal Appeals affirming her conviction, and the decision of the Supreme Court of Alabama denying review.
------------------------------------------------------------------

OPINIONS BELOW
The opinion of the Alabama Court of Criminal Appeals is unpublished, and is in the Appendix at 1a-19a.
The order of the Alabama Court of Criminal Appeals
denying Stuart’s timely petition for rehearing is unpublished, and is in the Appendix at 20a. The order of
the Supreme Court of Alabama denying Stuart’s petition for writ of certiorari is unpublished, and is in the
Appendix at 21a-22a.
------------------------------------------------------------------

JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1257(1). The Supreme Court of Alabama denied Stuart’s petition for writ of certiorari on March 16, 2018,
and this Petition to this Court is therefore timely under this Court’s Rule 13(1).
------------------------------------------------------------------

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CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him. . . .”
------------------------------------------------------------------

STATEMENT OF THE CASE
Vanessa Stuart was charged in Alabama and was
convicted of criminally-negligent homicide and driving
under the influence.
At trial, the State introduced governmental laboratory reports of alcohol test results regarding blood
taken from Stuart. Stuart objected, specifically invoking the Sixth Amendment’s Confrontation Clause. The
trial court overruled the objections and admitted the
reports. See R-645 in state court Record on Appeal
(“I object that this is a violation of my client’s Sixth
Amendment right to confrontation of the witnesses
against her.”); R-646 to -49;1 R-650 (objection overruled).
The “reports” were State Exhibits 184 and 185
(Record on Appeal, C-329 to -332). They are on their
1

“[I]ntroduction of this document will contain the results of
a blood alcohol analysis done by another scientist who . . . by all
appearances is not going to testify in this case for the State of
Alabama. . . . Baletia Sutton, I am understanding, is not going to
testify. And this is a fundamental denial of my client’s right to
cross-examine the witnesses against her in violation of the Sixth
Amendment, the confrontation clause.”

 3
face official “Alabama Department of Forensic Sciences” documents, titled “Toxicological Analysis Report,” and they designate Stuart as the “Suspect.” They
are, on their face, reports “to” an addressee at the
Daphne, Alabama, Police Department. They state as
fact what Stuart’s blood alcohol level supposedly was.
They are the evidence of that supposed fact, a fact that
was of course very important to the trial. They report
high blood alcohol levels.
The reports were admitted for the truth of the
matters asserted. (See, e.g., opinion of Court of Criminal Appeals, at 3a, taking these exhibits as evidence
for the truth of the matter asserted: “Subsequent forensic analysis established that at the time Stuart’s
blood was drawn, which was over four hours after the
wreck, Stuart’s blood-alcohol level was .174.”). There
was no suggestion that they were admitted for nontruth purposes only.
The reports are signed by one person, Forensic Scientist Belicia Sutton. She did not testify. The State
gave no reason why not. Stuart was not informed before trial that Sutton would not testify due to any sort
of unavailability, nor was Stuart given an opportunity
to cross-examine her before trial.
The trial court allowed the exhibits to be introduced through the testimony of Jason Hudson, who (at
the time of trial) was toxicology section chief of the Department of Forensic Sciences. He was the only person
affiliated with the Department to testify. But there is
no evidence that Hudson was involved in the testing of

 4
Stuart’s blood, nor even in personally supervising
the testing. As the Court of Criminal Appeals wrote,
“In fact, Dr. Hudson was not employed by the DFS at
the time of the analysis.” (8a). As reflected in Hudson’s
testimony, R-678:
Q. You were not present when the blood was
handled, correct?
A.

Correct.

Q. You were not present when it was received. In fact, you didn’t even live in the state
of Alabama when it was received by the Department of Forensic Sciences, correct?
A. I know I did not work for the Department
of Forensic Sciences. And I can’t recall exactly
when I moved but you’re correct –
There is not a bit of evidence or even any claim by the
State, in the proceedings below, that Hudson had any
personal involvement in the testing of Stuart’s blood.
True he was the supervisor of the office at the time of
trial; but there is no evidence or even contention that
he was personally involved even in a supervisory way
in this blood testing, which was done long before trial.
On appeal to the Court of Criminal Appeals, Stuart argued the Confrontation Clause issue. (E.g., Brief
of Appellant, p. 23 (“The allowance by the trial court of
allowing the introduction of the blood evidence results
through this witness violated the defendant’s rights
under the Confrontation Clause in direct contradiction
to the United States Supreme Court holding in Bullcoming v. New Mexico, 564 U.S. 647 (2011).”)). The

 5
Court of Criminal Appeals addressed the issue, yet affirmed. It held that the presence of Hudson as a witness was sufficient under the Confrontation Clause.
(8a to 13a). Stuart sought review in the Supreme Court
of Alabama; her petition for certiorari argued that the
decision of the Court of Criminal Appeals was in direct
conflict with Bullcoming. (E.g., Petition for Writ of Certiorari, p. 2, section heading “Confrontation Clause”:
“The basis of this petition for the writ is that the decision is in direct conflict with a prior decision of the
United States Supreme Court on the same point of law
and nearly identical facts,” and going on to discuss
Bullcoming). The Supreme Court of Alabama denied
review.
Stuart is presently incarcerated.
------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT
AND FOR SUMMARILY REVERSING
The decision below is flatly contrary to Bullcoming
v. New Mexico, 564 U.S. 647 (2011). This Court should
grant review, and should summarily reverse.
The State was allowed to introduce forensic lab reports as exhibits to prove Stuart’s blood alcohol level,
through the testimony of a person (Jason Hudson) who
neither signed the reports, nor performed nor observed
the tests reported. Again, there is no claim by the State
that he actually performed or observed these tests of
Stuart’s blood. As the Court of Criminal Appeals wrote,

 6
“In fact, Dr. Hudson was not employed by the [forensic
science department] at the time of the analysis.” (8a).
In Bullcoming this Court held:
The question presented is whether the Confrontation Clause permits the prosecution to
introduce a forensic laboratory report containing a testimonial certification – made for
the purpose of proving a particular fact –
through the in-court testimony of a scientist
who did not sign the certification or perform
or observe the test reported in the certification. We hold that surrogate testimony of that
order does not meet the constitutional requirement. The accused’s right is to be confronted
with the analyst who made the certification,
unless that analyst is unavailable at trial, and
the accused had an opportunity, pretrial, to
cross-examine that particular scientist.
Bullcoming, 564 U.S. at 652. The Confrontation Clause
does not allow the introduction of such reports “through
the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported
in the certification.” Id. “The accused’s right is to be
confronted with the analyst who made the certification
. . . ,” id.
The testimony of another scientist “who was familiar with the laboratory’s testing procedures, but had
neither participated in nor observed the test on [the
defendant’s] blood sample” is not enough to satisfy the
Constitution. Id. at 651.

 7
As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced
against the accused at trial unless the witness
who made the statement is unavailable and
the accused has had a prior opportunity to
confront that witness. Because the New Mexico Supreme Court permitted the testimonial
statement of one witness, i.e., Caylor, to enter
into evidence through the in-court testimony
of a second person, i.e., Razatos, we reverse
that court’s judgment.
Id. at 657-58. “[T]he analysts who write reports that
the prosecution introduces must be made available for
confrontation . . . ,” id. at 661. The Constitution “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 662.
“In short, when the State elected to introduce Caylor’s
certification, Caylor became a witness Bullcoming had
the right to confront. Our precedent cannot sensibly be
read any other way.” Id. at 663.
There is simply no way to square the decision below with Bullcoming. And there is no room, in our judicial system, for state courts to flout this Court’s
decisions.
There is no doubt that the reports in this case
were “testimonial” within the meaning of Confrontation Clause doctrine including Bullcoming itself. Id.
at 663-65. They were created as an official report, explicitly framed on their face as reports “to” a police

 8
department, about “evidence” regarding a “suspect”
(Stuart). They stated facts clearly designed for use in
criminal proceedings – blood alcohol levels of the “suspect” – and were signed by the person who had done
the tests. There is, further, no room for doubt that the
reports were introduced, admitted, and used for the
truth of the matters asserted in them: i.e., Stuart’s supposed blood alcohol levels. Neither the State nor the
courts below denied these points.
And yet here, the State did – and the state courts
allowed – exactly what Bullcoming forbids. Stuart had
the right to confront the witness whose testimonial
statements of fact were contained in the “reports”:
Belicia Sutton. The courts below deprived Stuart of
that right, saying that it was good enough to have the
testimony of Hudson – even though there is no claim
that he was involved in the testing of this blood at all.
Bullcoming does not allow this. That is exactly what
Bullcoming holds.
No later decision of this Court has overruled Bullcoming in this regard. As discussed above, there is no
dispute that these reports were admitted into evidence
for the truth of what Sutton stated there about Stuart’s blood alcohol level. And there is no dispute that
the reports were testimonial under Bullcoming. Neither the State nor the courts below disputed those
things; nor could they. The plurality opinion in Williams v. Illinois, 567 U.S. 50 (2012), is therefore inapposite. Bullcoming remains the law that governs this
case.

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The State argued that Hudson’s testimony was
good enough because the relevant office in the Department of Forensic Science uses a so-called “team approach.” (State Brief to Alabama Court of Criminal
Appeals, pp. 16, 17). The State argued – and the Court
of Criminal Appeals accepted (8a to 13a) – that Hudson’s testimony was therefore good enough under
Chambers v. State, 181 So. 3d 429, 437-38 (Ala. Crim.
App. 2015) (adopting this sort of “team approach” analysis to allow lab-supervisor testimony).
But it is not necessary in this case to argue any
nuances of the law about the Confrontation Clause
ramifications of any so-called “team approach,” because there is no evidence that Hudson was even part
of a “team” with any involvement in testing Stuart’s
blood. Recognizedly, Justice Sotomayor, concurring in
Bullcoming, noted the possibility that testimony from
a witness other than the signer of the report might arguably suffice for constitutional purposes if that witness had personal involvement in the particular test
at issue. But that question, reserved by Justice Sotomayor, was about possible testimony by a person who
was actually involved in the particular test at issue:
the test of the defendant’s blood. There was no disagreement that, without such personal involvement in
the test of the defendant’s blood, the surrogate witness
was not enough to satisfy the Confrontation Clause.
Second, this is not a case in which the person
testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos

 10
conceded on cross-examination that he played
no role in producing the BAC report and did
not observe any portion of Curtis Caylor’s conduct of the testing. App. 58. The court below
also recognized Razatos’ total lack of connection to the test at issue. 147 N.M., at 492, 226
P.3d, at 6. It would be a different case if, for
example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need
not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and
report.
Bullcoming, 564 U.S. at 672-73 (Sotomayor, J., concurring).
Here, the facts are materially the same as in Bullcoming. There is no evidence that Hudson had any
“personal connection” to the testing of Stuart’s blood,
or that he “observed [Sutton] conducting a test” on Stuart’s blood; there is no showing that he had any “involvement whatsoever in the relevant test and report.”
Id. Again as the Court of Criminal Appeals wrote, “In
fact, Dr. Hudson was not employed by the DFS at the
time of the analysis.” (8a). Had Hudson testified that
he had observed and supervised Sutton in the performance of this test and analysis, we would have the
question reserved by Justice Sotomayor concurring in
Bullcoming. But he did not; and so we do not have that
reserved question.

 11
The best and indeed all that the Court of Criminal
Appeals could say about Hudson’s testimony, in response to Stuart’s Bullcoming argument, was this: he
“gave extensive testimony regarding the policies and
procedures of the DFS’s toxicology laboratory. This included controls in the analysis and the laboratory’s
standard practice of having the results of the analysis
independently reviewed.” (13a). And the Court cited
his testimony that, “as the [toxicology] section chief,
I’m fundamentally the toxicology supervisor so I’m responsible for the day-to-day workflow in the laboratory,
testing assignments for cases, as well as personnel
management.” (13a).
But to allow that, as enough to justify what was
done to Stuart here, is just contrary to Bullcoming. A
person who can testify about how the lab process works
is not good enough to satisfy the Constitution. A person
who cannot testify – at the very least – to having been
personally involved in observing the particular testing
at issue in the case is not good enough to satisfy the
Constitution. Again, at the risk of repetition, the holding of the Court in Bullcoming:
The question presented is whether the Confrontation Clause permits the prosecution to
introduce a forensic laboratory report containing a testimonial certification – made for
the purpose of proving a particular fact –
through the in-court testimony of a scientist
who did not sign the certification or perform
or observe the test reported in the certification. We hold that surrogate testimony of that

 12
order does not meet the constitutional requirement.
Bullcoming, 564 U.S. at 652. The testimony of another
scientist “who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on [the defendant’s] blood sample” is
not enough to satisfy the Constitution. Id. at 651. The
Confrontation 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 662. The Alabama courts
and the Alabama prosecutors simply did not follow the
holdings of Bullcoming.
------------------------------------------------------------------

CONCLUSION
Lower courts must follow this Court’s decisions.
Alabama’s courts failed to do that, here. This Court
should summarily reverse the decision below. In the alternative, Stuart respectfully requests that the Court
grant review and set the case for briefing and argument.
Respectfully submitted,
SAM HELDMAN
THE GARDNER FIRM
2805 31st St. NW
Washington DC 20008
(202) 965-8884
sheldman@gmail.com
Counsel of Record

JOHN W. BECK
P.O. Box 931
Fairhope AL 36533