State v. Kellum

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          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-41306

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

SETH ANTHONY KELLUM, JR,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Joseph A. Montano, District Court Judge

Raúl Torrez, Attorney General
Santa Fe, NM
Alexander W. Tucker, Assistant Solicitor General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Mallory E. Harwood, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                               MEMORANDUM OPINION

HANISEE, Judge.

{1}    Defendant Seth Anthony Kellum, Jr. appeals his convictions of trafficking a
controlled substance by possession with intent to distribute, contrary to NMSA 1978,
Section 30-31-20(A)(3) (2006), and possession of a controlled substance, contrary to
NMSA 1978, Section 30-31-23(A) (2021). On appeal, Defendant advances three
arguments: (1) the trial testimony of a forensic scientist who did not personally test the
substances at issue violated Defendant’s state and federal rights to confront witnesses
against him, see U.S. Const. amend. VI; N.M. Const., art. II, § 14; (2) the admission of
evidence not related to any charge constituted plain error; and (3) a sentence
enhancement he received violated Defendant’s due process rights. We affirm.

BACKGROUND

{2}    Defendant was arrested pursuant to an arrest warrant after being found seated in
the passenger seat of a vehicle. At the time of Defendant’s arrest, officers found and
seized a number of items suspected to belong to Defendant, including a firearm,
magazines and ammunition, a package containing small plastic bags, a scale, and
several bags containing both a white, crystalline substance and what appeared to be
mushrooms. The crystalline substance and mushrooms were sent to a state lab for
testing and confirmation that they were, in fact, illegal drugs.

{3}     The forensic scientist who received the substances and conducted the original
test, via a gas chromatograph/mass spectrometer (GC/MS) machine, was Deadra
Caleb. After testing the substances, Caleb created, among other things, a report that
stated her conclusions regarding the identity of the substances at issue and case notes
containing her observations during the test. The State initially intended to call Caleb as
its expert witness in drug identification, but it later identified another forensic scientist,
Andrew Barber, who would testify in Caleb’s place. The State explained that Caleb had
voluntarily left the state crime lab to pursue employment elsewhere. The State noted
that Barber would “conduct a review of the chemical analysis and associated findings
and reach an independent conclusion as to the nature of the controlled substances” at
issue. The State assured the district court that Barber would “testify to [his] own
opinions and not simply parrot the contents of . . . Caleb’s analysis.”

{4}     At trial, Barber testified as promised. He stated that in preparation for testimony,
he reviewed the entirety of Caleb’s casefile, including her report and notes, as well as
personally inspected the raw data on the GC/MS machine that served as the basis for
her findings. When the State asked Barber if he could identify what type of machine
Caleb used to test the substances seized, Defendant objected that the answer
constituted hearsay. A bench conference ensued during which the district court ruled
that Barber’s forthcoming answer was admissible under Rule 11-703 NMRA, which
permits an expert to base his opinion on otherwise inadmissible facts or data if experts
in the field “reasonably rely” on such materials. Nonetheless, the district court permitted
Defendant to voir dire Barber outside the presence of the jury to explore the extent to
which his opinions were based on Caleb’s work product. During voir dire, Barber
explained that while he was basing his opinions on both the notes and report Caleb
created, Barber also personally reviewed the data produced by the GC/MS machine
Caleb used. Indeed, Barber stated that he personally went to the machine Caleb used
to conduct the test and reviewed “some of the data” on that machine. Defense counsel
asked, “All the opinions . . . that you’re being asked about . . . your opinions, your
independent opinions, they’re all based on . . . what’s in the casefile and the raw data
that you looked at, correct?” Barber responded affirmatively.
{5}     Before the jury, Barber identified the two substances underlying Defendant’s
convictions as methamphetamine and psilocyn, the chemical revealed in a test of
psilocybin mushrooms. Barber explained that he could identify both substances by
comparing the results from the tests Caleb performed to results from control tests of
known quantities of methamphetamine and psilocybin mushrooms. On cross-
examination, Barber conceded that he was primarily relying on the materials Caleb
“created and printed out,” that he personally did not retest anything, and that he was
relying on Caleb to have correctly followed all of the proper steps and procedures when
testing the drugs. Barber specifically stated he knew Caleb was following the lab
policies during the test from “looking at the data and the notes.” Defendant was
subsequently convicted of trafficking methamphetamine by possession with intent to
distribute and possession of psilocybin mushrooms. Defendant appeals.

DISCUSSION

I.     Confrontation Clause

{6}    Defendant’s primary contention on appeal is his claim under the state and federal
Confrontation Clauses. See U.S. Const. amend. VI; N.M. Const., art. II, § 14. “We
review claimed violations of the confrontation right de novo.” State v. Huettl, 2013-
NMCA-038, ¶ 16,
305 P.3d 956
. Defendant principally argues that newly issued
precedent from the United States Supreme Court, Smith v. Arizona,
602 U.S. 779
(2024), controls our analysis and requires reversal of this Court’s previous decision in
Huettl. He further asserts that if Smith is not controlling and we can avoid overruling
Huettl—in which we considered only the federal Confrontation Clause, see 2013-
NMCA-038, ¶¶ 1, 4, 16-39—then we should conclude that Barber’s testimony violates
Defendant’s state confrontation rights pursuant to the New Mexico Constitution. See
N.M. Const., art. II, § 14. We are unpersuaded.

{7}      Smith involved a factual scenario identical to that of this case, except in one
critical aspect: the testifying forensic expert in Smith, Greggory Longoni, did not
personally review the raw data produced by the machine used to test the drugs at issue.
See
602 U.S. at 790-91
. In Smith, as here, the defendant was charged with multiple
counts of possession of various illicit drugs “for sale,” as well as simple possession of
other suspected drugs.
Id. at 789
. As here, the forensic analyst who tested the
suspected drugs, Elizabeth Rast, left employment at the state crime lab before trial, and
the state identified Longoni as a substitute analyst who would review Rast’s work and
testify in her place.
Id. at 790
. Longoni reviewed “a set of typed notes and a signed
report” created by Rast, and then at trial, “related what was in them, item by item by
item.”
Id. at 790-91
. The United States Supreme Court considered the rationale used by
the Arizona Court of Appeals in the case, which held that “an expert may testify to the
substance of a nontestifying expert’s analysis, if such evidence forms the basis of the
testifying expert’s opinion.”
Id. at 792
(alteration, internal quotation marks, and citation
omitted). It then expressly rejected that rationale.
Id.
{8}     In its place, the United States Supreme Court stated the foundational question in
a Confrontation Clause case: “a court analyzing a confrontation claim must identify the
role that a given out-of-court statement . . . served at trial.”
Id. at 793
. The Court
identified the pertinent out-of-court statements as “Rast’s statements about her lab
work.”
Id.
Here, we are not convinced that Barber represented to the jury or otherwise
relied on an out-of-court statement while testifying about his conclusions regarding the
identity of the substances at issue. We, of course, acknowledge that Barber admitted to
having reviewed Caleb’s lab notes and written report—exactly the same type of
documents used by Longoni in Smith and even related to a test on a GC/MS machine,
as in this case, see
id.
at 790-91—but, unlike Smith, Barber also came to independent
conclusions based on his review of the data from the machine Caleb used:

        Prosecutor: Did you come to an independent conclusion based off your
                    review of all the available information and data in this
                    matter?

        Barber:         Yes, I did.

        Prosecutor: And what substance based off your independent review and
                    conclusion is lab item number 2?

        Barber:         The data are consistent with psilocyn.

The same questions were asked and like answers returned regarding the seized
methamphetamine. As we stated in Huettl, raw data produced by one forensic analyst
during a test to determine a substance’s identity is “not a testimonial statement that
would give rise to a confrontation right.”
2013-NMCA-038
, ¶ 26. To the extent that Smith
changed the applicable Confrontation Clause analysis, it does not affect this statement
from Huettl because, as we have said, raw data was not relied on by the testifying
expert in Smith. See
602 U.S. at 790-91
.

{9}    Smith repeatedly focused its analysis on Rast’s out-of-court statements, which
Longoni relied on to form his opinions. See
id. at 793
(“If Rast’s statements came in to
establish the truth of what she said, then the [Confrontation] Clause’s alarms begin to
ring; but if her statements came in for another purpose, then those alarms fall quiet.”
(emphasis added));
id. at 796
(“The jury cannot decide whether the expert’s opinion is
credible without evaluating the truth of the factual assertions on which it is based.”
(emphasis added));
id. at 798
(“Rast’s statements thus came in for their truth, and no
less because they were admitted to show the basis of Longoni’s expert opinions.”
(emphasis added)). Due to the fact that, in this case, Barber reviewed the actual data
produced by Caleb’s test, a circumstance not present in Smith, we cannot say that
Smith controls our analysis or conclusion in this case.1


1We nonetheless note that Smith, if interpreted differently by our Supreme Court, may call into question
the continued viability of Huettl. That is because in Smith, the United States Supreme Court noted that it
was not simply the results of the GC/MS test—as articulated in Rast’s report and notes and conveyed to
{10} We similarly conclude that Smith does not require us to overturn Huettl, in which
the testifying expert did rely on raw data produced by another, nontestifying analyst.
See
2013-NMCA-038
, ¶ 3. Aside from Defendant’s assertion that Smith abrogated
Huettl, which we reject above, his only argument for overturning the case relies on
reasoning articulated in its dissenting opinion. He specifically points to the statement,
“the test results performed by [the testing analyst] were admitted as substantive
testimonial evidence at [the d]efendant’s trial and that [the d]efendant was deprived of
his right to cross-examine [the testing analyst] in violation of his constitutional right of
confrontation under the Sixth Amendment.” Id. ¶ 49 (Vigil, J., dissenting in part).
Defendant’s argument in this regard is merely a reiteration of argument already
considered and rejected by a panel majority of this Court, and Defendant does not offer
any new argument, outside of what was considered in Huettl, for ruling differently today.
Thus, we find no reason to overturn Huettl and determine that its reasoning controls our
conclusion.

{11} Defendant’s arguments that we should interpret the Confrontation Clause in the
state constitution, N.M. Const., art. II, § 14, differently than its federal counterpart are
equally unavailing. Our Supreme Court has already concluded that there is no reason to
interpret the clauses differently. See State v. Lopez,
2013-NMSC-047, ¶¶ 16-21
,
314
P.3d 236
(finding no textual, structural or policy-based reasons to depart from federal
interpretation of a defendant’s confrontation rights). Even if we could ignore such
precedent, which we cannot, see Mares,
2024-NMSC-002
, ¶ 34, Defendant has not
offered us any meaningful argument beyond what was, in Defendant’s view, a lack of
clarity in federal caselaw prior to Smith—which Defendant himself asserts Smith
rectified. See generally Williams v. Illinois,
567 U.S. 50
(2012) (resulting in only a

the jury by Longoni—that offended the Confrontation Clause, but also Rast’s assertions about the
propriety of the tests conducted:
         Longoni could opine that the tested substances were marijuana, methamphetamine, and
         cannabis only because he accepted the truth of what Rast had reported about her work in
         the lab—that she had performed certain tests according to certain protocols and gotten
         certain results. And likewise, the jury could credit Longoni’s opinions identifying the
         substances only because it too accepted the truth of what Rast reported about her lab
         work (as conveyed by Longoni). If Rast had lied about all those matters, Longoni’s expert
         opinion would have counted for nothing, and the jury would have been in no position to
         convict. So the State’s basis evidence—more precisely, the truth of the statements on
         which its expert relied—propped up its whole case. But the maker of those statements
         was not in the courtroom, and Smith could not ask her any questions.
Smith,
602 U.S. at 798
. Here, Barber acknowledged before the jury that he was relying on Caleb’s written
assertions that she followed the lab’s policies when testing the substances at issue. Nonetheless, our
conclusion in Huettl is not merely this Court’s expression of the current law in our state, but is also
supported by existing caselaw from our Supreme Court, which we are not at liberty to disregard. See
State v. Navarette,
2013-NMSC-003, ¶ 22
,
294 P.3d 435
(“[A]n expert witness may express an
independent opinion regarding his or her interpretation of raw data without offending the Confrontation
Clause.”); see also State v. Mares,
2024-NMSC-002
, ¶ 34,
543 P.3d 1198
(“The Court of Appeals is to be
governed by the precedents of this Court . . . even when a United States Supreme Court decision seems
contra, or when the Court of Appeals determines that this Court would conclude that the precedent is no
longer good law and would overrule it given the opportunity.” (internal quotation marks and citations
omitted)). As such, even while Smith may cast doubt on Huettl’s reliability, we are without authority to
adopt new federal caselaw or analyses that affect or contradict existing precedent from our own Supreme
Court. Instead, we flag this concern for our Supreme Court.
plurality opinion among a fractured court), abrogated by Smith,
602 U.S. 779
. Thus,
Defendant has provided us with no reason to depart from now-clarified federal
precedent; nor has he explained how we can reinterpret the scope of a state
constitutional provision already defined by our Supreme Court. We, therefore, decline to
depart from the reasoning announced in Huettl, which governed a nearly factually
identical circumstance and, in our view, remains good law. For the foregoing reasons,
we conclude Barber’s independent review of the raw data produced by Caleb’s tests did
not violate Defendant’s state confrontation rights.

II.    Admission of Evidence

{12} We next turn to Defendant’s argument that admission of evidence not related to
any charge constitutes plain error. The evidence at issue is a single, blue pill that had
been packaged with the methamphetamine seized from Defendant at the time of his
arrest. The district court had previously ruled to exclude reference to uncharged crimes,
and the pill was not related to the charges at issue. Discovering the existence of the pill
on the morning of trial, the district court ruled that no state witness was allowed to
mention it, and it stated that it would give a curative instruction admonishing the jury not
to “speculate about any evidence that doesn’t come through testimony or by way of
exhibit.” Defendant did not further object and concedes on appeal that, absent such
objection, our review is for plain error.

{13} Plain error review, as an exception to the preservation requirement, applies “only
if the alleged error affected the substantial rights of the accused.” State v. Montoya,
2015-NMSC-010, ¶ 46
,
345 P.3d 1056
(internal quotation marks and citation omitted).
“To find plain error, th[is] Court must be convinced that admission of the [evidence]
constituted an injustice that created grave doubts concerning the validity of the verdict.
Further, in determining whether there has been plain error, we must examine the
alleged errors in the context of the [evidence] as a whole.” See
id.
(alteration, omission,
internal quotation marks, and citations omitted).

{14} Here, Defendant does not contend that the State or any witness violated the
judge’s ruling by discussing the blue pill before the jury. Rather, Defendant contends
that admission of the pill constitutes plain error requiring reversal because it creates
“grave doubts” regarding whether Defendant was trafficking drugs, or merely possessed
them. We are not persuaded. Assuming without deciding that admission of the pill was
error, it was neither identified nor discussed at trial. While Defendant argues the jury
nonetheless inferred it was fentanyl, and was thereby unduly prejudiced against him on
the trafficking charge, nothing in the record supports his assertion. See State v. Hall,
2013-NMSC-001, ¶ 28
,
294 P.3d 1235
(“It is not our practice to rely on assertions of
counsel unaccompanied by support in the record. The mere assertions and arguments
of counsel are not evidence.” (internal quotation marks and citation omitted)).

{15} Furthermore, the State presented significant testimony and evidence that
otherwise supported its accusation that Defendant intended to sell the drugs in his
possession. In addition to the testimony discussed above regarding the actual drugs
seized from Defendant, the jury heard testimony from two of the arresting officers that
Defendant was caught with a package of numerous small baggies, a small digital scale,
a firearm, and numerous magazines and ammunition.

{16} Jurors also heard testimony from a law enforcement officer who was qualified as
an expert in distinguishing between drug possession and drug trafficking. The expert
testified that the methamphetamine appeared “ready for . . . sale,” that the baggies
seized are normally used in narcotics distribution, and that digital scales like the one
found with Defendant during his arrest are typically used to sell drugs. In light of the
above-mentioned testimony and evidence, and given that the State did not mention or
otherwise emphasize the blue pill, we conclude that its admission alongside the
methamphetamine does not create grave doubts about the validity of the verdict and,
therefore, conclude that no plain error exists.

III.   Sentence Enhancement

{17} Defendant’s last argument challenges a sentence enhancement he received
because he was convicted of a “second or subsequent” trafficking offense pursuant to
Section 30-31-20(B)(2). Defendant asserts this enhancement violated his substantive
due process rights but concedes this argument is unpreserved because it was not
raised below. As such, we decline to address his argument. See Montoya, 2015-NMSC-
010, ¶ 45 (“In order to preserve an issue for appeal, a [party] must make a timely
objection that specifically apprises the trial court of the nature of the claimed error and
invokes an intelligent ruling thereon.” (internal quotation marks and citation omitted));
State v. Leon,
2013-NMCA-011, ¶ 33
,
292 P.3d 493
(“We generally do not consider
issues on appeal that are not preserved below.” (internal quotation marks and citation
omitted)). Defendant argues that the preservation requirement for substantive due
process claims in a criminal case is unclear but does not provide us with any authority
that the general preservation requirement does not apply. “[A]ppellate courts will not
consider an issue if no authority is cited in support of the issue and that, given no cited
authority, we assume no such authority exists.” State v. Vigil-Giron,
2014-NMCA-069, ¶
60
,
327 P.3d 1129
. We, therefore, reject this argument.

CONCLUSION

{18}   We affirm.

{19}   IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

SHAMMARA H. HENDERSON, Judge