No. 17-1676
In the

Supreme Court of the United States
─────────────────♦─────────────────
VANESSA STUART,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.
─────────────────♦─────────────────
On Petition for Writ of Certiorari to the
Alabama Court of Criminal Appeals
─────────────────♦─────────────────
BRIEF OF RESPONDENT IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
─────────────────♦─────────────────
Steve Marshall
Alabama Attorney Gen’l
Beth Slate Poe
Assistant Attorney Gen’l
*Counsel of record

August 8, 2018

OFFICE OF THE ALABAMA
ATTORNEY GENERAL
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
bpoe@ago.state.al.us
Counsel for Respondent

 i

QUESTION PRESENTED
At Petitioner Vanessa Stuart’s trial for criminally
negligent homicide and driving under the influence of
alcohol, the court permitted the introduction of
forensic reports regarding Stuart’s blood alcohol level
several hours after the offense to provide the basis for
expert opinion testimony as to her blood alcohol level
at the time of the offense. The question in this case is
whether the trial court’s decision to permit opinion
testimony based on these reports was consistent with
the Confrontation Clause of the Sixth Amendment.

 ii

TABLE OF CONTENTS
QUESTION PRESENTED......................................... i
TABLE OF CONTENTS ........................................... ii
TABLE OF AUTHORITIES..................................... iii
STATEMENT OF THE CASE ...................................1
REASONS FOR DENYING THE PETITION...........4
I. Hudson’s Reliance on Toxicology Reports
Prepared by Another Expert Was
Consistent with Williams v. Illinois.....................6
II. Even if the Introduction of the Toxicology
Reports Was in Error, That Error Was
Harmless Beyond a Reasonable Doubt. .............12
CONCLUSION .........................................................18

 iii

TABLE OF AUTHORITIES
Cases
Bullcoming v. New Mexico, 564 U.S. 647
(2011)............................................................ passim
Chapman v. California, 386 U.S. 18 (1967) .......12, 17
Coy v. Iowa, 487 U.S. 1012 (1988) ............................12
Crauswell v. State, 638 So. 2d 11 (Ala. Crim.
App. 1993) ............................................................16
Ex parte Buckner, 549 So. 2d 451 (Ala. 1989)
........................................................................13, 14
Ex parte State, 528 So. 2d 1159 (Ala. 1988) .............13
Gibson v. City of Troy, 481 So. 2d 463 (Ala.
Crim. App. 1985) ..................................................13
Hargrove v. City of Rainbow City, 619 So. 2d
944 (Ala. Crim. App. 1993) ..................................16
Lawrence v. State, 601 So. 2d 194 (Ala.
Crim. App. 1992) ..................................................15
Milton v. Wainwright, 407 U.S. 371 (1972)..............14
South Dakota v. Neville, 459 U.S. 553 (1983)
..............................................................................14
Williams v. Illinois, 567 U.S. 50 (2012)............ passim
Statutes
ALA. CODE § 13A-2-2 (1975) ......................................16
ALA. CODE § 13A-6-4 (1975) ............................1, 12, 16
ALA. CODE § 32-5A-191 (1975) ..........................1, 3, 12

 1

STATEMENT OF THE CASE
On the night of April 1, 2015, Petitioner Vanessa
Stuart rear-ended Tiffany Howell’s vehicle on
Interstate 10 just outside Daphne, Alabama causing
Howell’s vehicle to rotate clockwise and roll several
times before striking a tree and coming to a stop.
Daphne police officers responding to an emergency
911 call determined that Howell was already dead
when they reached the scene. The evidence at trial
demonstrated that Stuart was drunk and driving at a
speed of approximately ninety to 100 miles per hour
when she struck Howell’s vehicle and killed her.
Stuart was charged with criminally negligent
homicide and driving under the influence of alcohol in
violation of Sections 13A-6-4 and 32-5A-191 of the
Code of Alabama (1975). She was convicted of both
charges after a six-day jury trial. On April 19, 2017,
she was sentenced to consecutive terms of
imprisonment for one year for each conviction — with
three months of each term suspended — and two
years of probation. Stuart’s conviction and sentence
were affirmed by the Alabama Court of Criminal
Appeals. The Alabama Supreme Court denied her
petition for a writ of certiorari. At present, Stuart has
already served twelve months of her eighteen-month
jail sentence.
Alongside myriad other evidence that Stuart was
drunk when the fatal collision occurred, the State
offered the opinion testimony of Jason Hudson, the
toxicology section chief at the Alabama Department of
Forensic Sciences (“the Department”). To supply the

 2

factual basis for his opinion, the State introduced two
toxicology reports prepared by the Department
reflecting Stuart’s blood alcohol level four hours after
the accident occurred. State’s Exhibits 184 and 185
(Record on Appeal, C. 329-32.) These reports were
prepared using a blood sample taken from Stuart
pursuant to a search warrant.
Hudson was not involved in the preparation of
these reports, R. 678, and he did not attest to their
validity. Instead, Hudson’s commentary on the
reports themselves was restricted to interpreting
their results based on his personal familiarity with
the procedures of his lab and the characteristics of its
reports. R. 654 to R. 657. With regard to the first
report, which was based on a blood sample taken at
2:59 a.m., Hudson attested that “[t]he result for this
analysis was 0.174 grams per 100 milliliters of blood.”
R. 655. The second report, which indicates that it was
taken approximately thirty-four minutes later, at
approximately 3:33 a.m., indicated a result of 0.158
g/100 mL of blood. R. 657.
The prosecution proceeded to ask Hudson to
calculate Stuart’s probable blood alcohol level at the
time of the accident based on the assumption that
these reports accurately reflected her blood alcohol
levels at 2:59 a.m. and 3:33 a.m., respectively. R. 657.
Hudson indicated that to do so, he would need to make
the “assumption” that the individual from whom the
samples had been taken had not “consumed any
alcohol since the incident,” because that would yield a
higher blood alcohol level at the time when the
samples were taken than that which the individual

 3

would have had when the event occurred. R. 658. He
also indicated that, to work backwards from the
individual’s blood alcohol level at the time when the
samples were taken to the time of the accident, he
would have to assume that Stuart’s body eliminated
alcohol from her bloodstream at the average rate for
the general population, which he claimed is “.015
grams per 100 milliliters per hour.” R. 664.
The prosecution then asked Hudson whether he
was “able to, based on the average person, determine
what their blood alcohol level would have been at
10:40” p.m., the approximate time at which the
accident took place.
R. 664.
Based on these
assumptions and a hypothetical time frame in which
a person’s blood alcohol level was “.147 at 2:59 a.m.
and a collision took place at 10:40 p.m.,” R. 664,
Hudson determined that the average person’s blood
alcohol level would have been approximately 0.234
g/100 mL at the time of the accident. R. 665. This
level would be well over the legal limit of 0.8 g/100 mL.
ALA. CODE § 32-5A-191(a)(1).
Hudson did not characterize his opinion as
founded
on
anything
beyond
hypothetical
assumptions regarding the validity of the test results,
the applicable time frame, and Stuart’s physiological
characteristics. The hypothetical character of his
testimony was repeatedly underscored on crossexamination. For instance, Hudson conceded that he
had “no knowledge” of whether Stuart had the
elimination rate of an average person. R. 669. The
same was true with respect to time frame. When
defense counsel said, “you really don’t know one way

 4

or the other when this hypothetical situation started
or ended, right?,” Hudson answered “I do not.” R. 67172 (emphasis added).
For good measure, Hudson
agreed with defense counsel when he explained that
“again, all these [questions] are prefaced and
premised with the average person like we were
talking about with the prosecutor.” R. 678. Thus, as
the record makes plain, all parties present were aware
that the opinion offered by Hudson assumed the
results in the reports were true as a hypothesis, and
that he was not asserting that they were true.
REASONS FOR DENYING THE PETITION
Stuart contends in his petition for writ of certiorari
that the Court should summarily reverse the decision
of the Alabama Court of Criminal Appeals on the
ground that the introduction of toxicology reports
reflecting Stuart’s blood alcohol level was inconsistent
with Bullcoming v. New Mexico, 564 U.S. 647 (2011).
Bullcoming held that the Confrontation Clause does
not permit the introduction of “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” if he “did not sign
the certification or perform or observe the test
reported in the certification.” 564 U.S. at 652. Per
Stuart’s logic, the introduction of the toxicology
reports in the case at hand was inconsistent with this
holding because Hudson did not perform or observe
the tests reflected in the reports at issue.
This argument ignores the Court’s later decision in
Williams v. Illinois, 567 U.S. 50 (2012), which

 5

established that Bullcoming does not create a
categorical prohibition on expert reliance on a forensic
report produced by a different scientist. Williams did
not produce a controlling majority opinion, but under
the logic of either the plurality or concurrence, the
decision of the Alabama Court of Criminal Appeals
below was not in error. Under the rule of the Williams
plurality, “[o]ut-of-court statements that are related
by the expert solely for the purpose of explaining the
assumptions on which that opinion rests are not
offered for their truth and thus fall outside the scope
of the Confrontation Clause.” 567 U.S. at 58 (plurality
opinion). In his concurring opinion, Justice Thomas
adopted a test that would permit the same result if
the report in question lacked sufficient “indicia of
solemnity” to fall within the class of statements
regulated by the Confrontation Clause. Id. at 111
(Thomas, J., concurring in the judgment) (citation
omitted).
The trial court’s decision to permit Hudson to offer
an opinion as to Sturt’s blood alcohol level at the time
of the accident that was based on toxicology reports he
did not prepare was consistent with Williams under
either test. Here, as in Williams, the principal
purpose of the forensic reports at issue was to provide
a basis for Hudson’s opinion testimony, and Hudson
did not attest to the truth of the results supplied by
the reports. And the reports were neither sworn nor
certified. Thus, under either approach, the decision
below passes muster under Williams.
Even if the trial court’s decision to permit Hudson
to offer opinion testimony based on these reports was

 6

in error, the writ should still be denied. Summary
reversal in this case would also be an exercise in
futility and a waste of judicial resources because any
error resulting from the introduction of the toxicology
report into evidence was plainly harmless. Multiple
officers testified that they detected the odor of alcohol
on Stuart and that she behaved in a manner
indicative of an intoxicated state. Stuart admitted to
officers that she had consumed alcohol and that it was
still in her system when she was taken to the hospital
for a blood test. Thus, summary reversal would
accomplish nothing, because the Alabama Court of
Criminal Appeals can easily reinstate its prior holding
on remand based on a harmless error theory.
For these reasons, the Court should deny Stuart’s
petition for writ of certiorari.
I. Hudson’s Reliance on Toxicology Reports
Prepared by Another Expert Was Consistent
with Williams v. Illinois.
The decision of the Alabama Court of Criminal
Appeals upholding the trial court’s decision to permit
Hudson to testify on the basis of toxicology reports
conducted by another analyst was consistent with
both the approach of the Williams plurality and
Justice Thomas’s concurring opinion. Accordingly,
Stuart’s petition for writ of certiorari must be denied.
Under the rule of the Williams plurality, “[o]ut-ofcourt statements that are related by the expert solely
for the purpose of explaining the assumptions on
which that opinion rests are not offered for their truth

 7

and thus fall outside the scope of the Confrontation
Clause.” 567 U.S. at 58 (plurality opinion). In this
case, as in Williams, an “expert witness referred to the
report not to prove the truth of the matter asserted in
the report,” i.e. that Ms. Stuart’s blood alcohol level
was 0.174 g/100 mL, but only to establish that if that
was her blood alcohol level at the time when her blood
was tested, then her blood alcohol level would have
been 0.234 g/100 mL at the time of the accident. 567
U.S. at 79.
The record attests to the fact that the hypothetical
character of Hudson’s opinion was made plain to the
jury. Hudson’s testimony was explicitly based on four
assumptions. First, and most importantly, Hudson
assumed that the toxicology reports reflected Stuart’s
blood alcohol level at the time when the blood samples
were taken. R. 657; R. 664. Indeed, he conceded that
he did not know anything about Stuart at all. R. 666.
Second, he assumed that Stuart did not consume any
alcohol after the accident occurred. R. 658. Third, he
assumed that Stuart had the same alcohol elimination
rate as an average person. R. 664. Fourth, he
assumed that the accident took place at
approximately 10:40 p.m. and that the samples were
taken at approximately 2:59 a.m. and 3:33 a.m. Only
on the basis of these assumptions did Hudson opine
that the blood alcohol level of “the average person”
would be approximately 0.234 g/100 mL at 10:40 p.m.,
the time when the accident was assumed to have
occurred for the purpose of his analysis. R. 664
(emphasis added).

 8

Thus, Hudson relied on the toxicology reports only
to indicate the underlying factual information upon
which he based his independent expert opinion, and
not for the purpose of proving Stuart’s blood alcohol
level at the time when the samples were taken.
Accordingly, his testimony was consistent with the
opinion of the Williams plurality, and there was no
error in permitting him to rely on the toxicology
reports in question.
The relevance of Hudson’s opinion was established
by independent evidence indicating that the reports
referenced in Hudson’s testimony were based on blood
samples taken from Stuart. Nurse Tamika Williams
testified that she drew four vials of blood from Stuart,
sealed them, and transferred them to Officer Matthew
Kilcrease. R. 331-35. Officer Kilcrease delivered the
samples in a sealed condition to Sergeant Ken
Lassiter, who placed them in sealed kit boxes. R. 428.
He maintained possession of the boxes until the next
day, when he transferred them to evidence custodian
Jim Rivers, who placed them in an evidence closet. R.
428-33. Rivers shipped the sealed kit boxes via FedEx
to the Department’s Birmingham office on April 7,
2015. R. 614-24. The samples were logged by the
Department on April 10, 2015, and subjected to
analysis. R. 684. Accordingly, there is no reason to
doubt that the reports were developed using samples
taken from Stuart. This, in turn, ensures that there
was an adequate factual predicate for Hudson’s
opinion testimony.
But even if there was no competent evidence to
establish the basis of Hudson’s opinion, that would not

 9

suffice to establish a Confrontation Clause violation.
“The question before us is whether petitioner’s Sixth
Amendment confrontation right was violated, not
whether the State offered sufficient foundational
evidence to support the admission of [Hudson’s]
opinion.” Williams, 567 U.S. at 75. “If there were no
proof” that the estimates of Stuart’s blood alcohol level
given in the forensic reports at issue were accurate,
Hudson’s testimony “would be irrelevant, but the
Confrontation Clause . . . does not bar the admission
of irrelevant evidence, only testimonial statements by
declarants who are not subject to cross-examination.”
Id. at 76. Accordingly, the fact that Hudson’s
testimony treated the results in the reports as
hypothetically true, rather than asserting that they
were actually true, is enough to render the lower
court’s decision consistent with the opinion of the
Williams plurality.
The lower court’s decision also comports with the
approach taken by Justice Thomas in his Williams
concurrence. Under his rule, “the Confrontation
Clause regulates only the use of statements bearing
‘indicia of solemnity,’” a category which includes only
“‘formalized testimonial materials,’ such as
depositions, affidavits, and prior testimony, or
statements resulting from ‘formalized dialogue’ such
as custodial interrogation.” Williams, 567 U.S. at 111
(Thomas, J., concurring in the judgment) (citation
omitted). Here, as in Williams, the reports at issue
“lack[] the solemnity of an affidavit or deposition,”
because neither report is “a sworn nor a certified
declaration of fact.” Id. Neither report “attest[s] that
its statements accurately reflect the . . . testing

 10

processes used or the results obtained.” Id. Both
reports are signed by Belicia Sutton, who is identified
on each as a forensic scientist, but on the reports, she
“neither purports to have performed the . . . testing
nor certify the accuracy of those who did.” Id.
Moreover, “although the report was produced at the
request of law enforcement, it was not the product of
any sort of formalized dialogue resembling custodial
interrogation.” Id.
Thus, judged from the standpoint of the “indicia of
solemnity” test, this case is undistinguishable from
Williams. Bullcoming is inapposite because in that
case, “the report, though unsworn, included a
‘Certificate of Analyst’ signed by the forensic analyst
who tested the defendant’s blood sample.” Williams,
567 U.S. at 112 (opinion of Thomas, J.).
No
comparable certification accompanied the reports
introduced at Stuart’s trial, and there is nothing in
the record indicating that Sutton, the analyst who
signed the reports, was the one who tested Stuart’s
blood. See R. 631 (“No one scientist handles a sample
from start to finish.”); Thus, under either test
propounded by the Justices in the Williams majority,
the trial court’s decision to permit Hudson to offer an
opinion as to Stuart’s blood alcohol level at the time of
the accident did not amount to a violation of her rights
under the Confrontation Clause.
True, this case differs from Williams in that the
forensic report relied upon by the State’s expert was
nominally introduced into evidence. But this does not
make for a legal difference. As Williams itself
indicates, the introduction of forensic reports does not

 11

constitute a Confrontation Clause violation unless
“there is no question that this was done for the
purpose of proving the truth of what they asserted.”
567 U.S. at 79. In this case, the purpose of introducing
the toxicology report was not to prove what Stuart’s
blood alcohol level was when her blood was taken (i.e.
the matter asserted by the report), but rather to
provide a basis for Hudson’s opinion testimony on
what Stuart’s blood alcohol content was when the
accident occurred. Thus, the introduction of these
reports is not condemned by Bullcoming, as clarified
by the Williams plurality. Under the approach of
Justice Thomas, the fact that a report was introduced
into evidence is in itself immaterial. All that matters
is whether the report was marked by the
characteristic “solemnity of an affidavit or
deposition.” 567 U.S. at 111. That was not the case
here.
To reiterate, Williams establishes that there is no
categorical bar to the introduction of reports relied
upon by expert witnesses in giving opinion testimony.
Stuart reaches the opposite conclusion only by
ignoring Williams and treating Bullcoming as the last
word on the intersection between the Confrontation
Clause and expert testimony.
Under Stuart’s
approach, the nominal “introduction” of a forensic
report into evidence would constitute a Confrontation
Clause violation unless the analyst who performed the
relevant test testified at trial, regardless of the
purpose for which the report was used. Adopting this
approach would needlessly elevate form over
substance and harden Bullcoming’s holding into a
rigid rule. The Court has already rejected this

 12

approach in Williams, and it should do so again here
by denying Stuart’s petition.
II. Even if the Introduction of the Toxicology
Reports Was in Error, That Error Was
Harmless Beyond a Reasonable Doubt.
Even assuming that the introduction of the
toxicology
reports
technically
constituted
a
Confrontation Clause violation, granting Stuart’s
petition for writ of certiorari would be an exercise in
futility and a waste of judicial resources because any
error resulting from the introduction of those reports
was “harmless beyond a reasonable doubt.” Chapman
v. California, 386 U.S. 18, 24 (1967). Where a
Confrontation Clause violation occurs, “harmlessness
must . . . be determined on the basis of the remaining
evidence.” Coy v. Iowa, 487 U.S. 1012, 1022 (1988).
In this case, a wealth of evidence apart from the
toxicology
reports
and
Hudson’s
testimony
demonstrated that Stuart was guilty of both driving
under the influence of alcohol in violation of Section
32-5A-191(a) of the Code of Alabama (1975) and
criminally negligent homicide in violation of Section
13A-6-4 of the Code of Alabama (1975).
Under Alabama law, proof of a defendant’s precise
blood alcohol level is not required to sustain a
conviction for driving under the influence of alcohol in
violation of Section 32-5A-191(a).
The statute
criminalizing driving under the influence provides
that proof may be established in two distinct ways: the
State may prove that a person drove or was “in actual
physical control of any vehicle” while either “(1)

 13

[t]here is 0.08 percent or more by weight of alcohol in
his or her blood” or “(2) [u]nder the influence of
alcohol.” See Ex parte State, 528 So. 2d 1159, 1162
(Ala. 1988) (holding that “Section 32-5A-191(a)(1) and
(2) are merely two different methods of proving the
same offense — driving under the influence.”). Under
the latter method of proving the offense all that is
required is proof “that the defendant was under the
influence of alcohol to the extent that it affected his
ability to operate his vehicle in a safe manner.” Ex
parte Buckner, 549 So. 2d 451, 453 (Ala. 1989).
There was no genuine dispute at trial that Stuart
was intoxicated when she rammed Howell’s vehicle
and killed her. The fact that Stuart was intoxicated
was obvious to virtually everyone who encountered
her on the night of the collision. Sergeant Glenn Barr,
one of the first officers to arrive on the scene of the
accident, testified that he “detected the odor of alcohol
coming from her person.” R. 165. Four other
witnesses made the same observation. See R. 172
(Todd Gresham); R. 248 (Reginald Ardis); R. 318
(Matthew Kilcrease); R. 418 (Ken Lassiter). Multiple
witnesses testified that Stuart had “glassy eyes” and
“slurred speech.” R. 292; see also R.172; R. 247; R.
418.
She manifested consciousness of guilt by
verbally refusing to take a breathalyzer test. R. 297.1
——————
The fact that a defendant refuses to submit to a breathalyzer
test is admissible evidence of intoxication under Alabama law.
Gibson v. City. of Troy, 481 So. 2d 463, 465 (Ala. Crim. App.
1985). This Court has held that the use of such a refusal as
evidence of intoxication is consistent with the Fifth Amendment
right against self-incrimination. South Dakota v. Neville, 459
1

 14

Most significantly, Stuart actually admitted that she
had been drinking beer on the night of the accident.
R. 320. At trial, these admissions were confirmed
using a video recording of Stuart being transported
from the Daphne City Jail to Thomas Hospital for her
blood to be drawn.2 The video was made using a backseat camera in the police cruiser of Officer Kilcrease.
R. 323. In the video, Stuart explicitly told Officer
Kilcrease “beer is in my system and I don’t like that.”
R. 328.
Thus, even if the toxicology reports and Hudson’s
testimony had been excluded, the jury would have
easily concluded that Stuart was intoxicated at the
time when the accident occurred. The evidence
proving that element of the offense was
overwhelming. Cf. Milton v. Wainwright, 407 U.S.
371, 373 (1972) (“[O]verwhelming evidence of guilt” is
sufficient to render the introduction of challenged
evidence “beyond reasonable doubt, harmless.”).
The State’s evidence that Stuart’s intoxication
“affected her ability to operate his vehicle in a safe
manner” did not depend on the toxicology reports or
Hudson’s testimony. Ex parte Buckner, 549 So. 2d at
——————
U.S. 553, 564 (1983) (holding “that a refusal to take a bloodalcohol test, after a police officer has lawfully requested it, is not
an act coerced by the officer, and thus is not protected by the
privilege against self-incrimination.”).
2 Stuart was properly Mirandized prior to being transported to
the Daphne City Jail. R. 289. Her statement regarding the
presence of alcohol in her system was unsolicited and voluntary,
and the defense made no attempt to suggest otherwise at trial.
R. 328 (Stuart “actually asked if she could speak with” Officer
Kilcrease). Nor did Stuart raise any Miranda issue on appeal.

 15

453. Stuart admitted that she hit Howell’s vehicle. R.
342 (“I mean, obviously, I hit her car.”). This fact,
taken in conjunction with clear evidence of
intoxication, constituted sufficient evidence that her
alcohol use adversely affected her driving ability.
Lawrence v. State, 601 So. 2d 194, 196 (Ala. Crim.
App. 1992) (“When considered with the undisputed
fact that the appellant had been drinking . . . the fact
that an accident occurred while the appellant was
driving the vehicle is an ‘indication that he could not
safely operate his motor vehicle.’”) (citation omitted).
A crime scene investigation also revealed that, to
account for the damage done to Stuart and Howell’s
respective vehicles and their locations when the
officers arrived on the scene, Stuart had to have been
driving at between ninety and 100 miles per hour. R.
503. This was well over the speed limit of 70 miles per
hour.
R. 505.
Sergeant Ken Lassiter, who
interviewed Stuart after the accident, concluded that
she was “impaired to a point where she could not
operate her vehicle safely.” R. 509. During the
interview, Stuart betrayed telltale signs of
drunkenness during the course of the interview. Her
speech was slurred and Lassiter “smell[ed] the odor of
alcohol.” R. 418. She could not identify the city she
was in and did not know which lane she was in when
she attempted to pass Howell and collided with her
vehicle. R. 419.
Accordingly, the jury would have reached the same
verdict on the driving under the influence charge
regardless of whether the toxicology reports and
Hudson’s testimony had been admitted. See Hargrove
v. City. of Rainbow City, 619 So. 2d 944, 945 (Ala.

 16

Crim. App. 1993) (smell of alcohol, glassy eyes,
confused speech, and driving over the speed limit were
sufficient evidence that defendant “was incapable of
operating his vehicle safely when he was arrested.”).
For analogous reasons, the trial evidence was more
than sufficient to support Stuart’s conviction for
criminally negligent homicide in violation of Section
13A-6-4 even without the toxicology reports or
Hudson’s testimony. Under Alabama law, “[a] person
commits the crime of criminally negligent homicide if
he causes the death of another person by criminal
negligence.” Id. § 13A-6-4(a). “A person acts with
criminal negligence with respect to a result or to a
circumstance which is defined by statute as an offense
when he fails to perceive a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature
and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a
reasonable person would observe in the situation.”
ALA. CODE § 13A–2–2(4) (1975). The evidence at trial
plainly demonstrated that Stuart was driving while
palpably and knowingly intoxicated and traveling at
approximately twenty to thirty miles per hour over
the speed limit. This evidence would all but mandate
a guilty verdict on this charge under Alabama law.
See, e.g., Crauswell v. State, 638 So. 2d 11, 13-14 (Ala.
Crim. App. 1993) (“[A]damantly reject[ing]”
insufficiency of the evidence challenge to criminally
negligent homicide conviction where the defendant
“was speeding and exceeding the speed limit by ten
miles per hour” and “was intoxicated and driving
under the influence of alcohol.”).

 17

Any error resulting from the introduction of the
toxicology reports at Stuart’s trial was minimal, and
had “little, if any, likelihood of having changed the
result of the trial.” Chapman, 386 U.S. at 22.
Hudson’s testimony was at least broadly consistent
with the holding of Williams. The record attests to the
fact that the principal use made of the reports at trial
was to provide a factual basis for Hudson’s opinion
regarding Stuart’s blood alcohol content at the time of
the accident. Unlike Bullcoming, Hudson did not
merely take the stand and relate the findings of
another scientist verbatim. He used the reports at
issue to conduct his own calculation of Stuart’s
estimated blood alcohol level at the time of the offense.
Given that Hudson did not attest to the validity of the
results registered in the reports and counsel for both
the State and the defense repeatedly emphasized the
hypothetical nature of his testimony, it is highly
unlikely that the jury was misled by the toxicology
reports and Hudson’s testimony.
These considerations entail that nothing would be
accomplished by a reversal of the decision of the
Alabama Court of Criminal Appeals below. That
court could and would simply reinstate its prior
holding on remand under a harmless error theory that
finds ample support in the record. Given that the
existence of error here is speculative at best and the
alleged error could not have affected the outcome of
the trial, the Court should deny Stuart’s petition for a
writ of certiorari.

 18

CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be denied.
Respectfully submitted,
STEVE MARSHALL
Attorney General
Beth Slate Poe
Assistant Attorney Gen’l
*Counsel of record
OFFICE OF THE ALABAMA
ATTORNEY GENERAL
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
bpoe@ago.state.al.us
August 8, 2018

Counsel for Respondent