☢ test - Í

Dunn v. State, 292 Ga.App. 667, 665 S.E.2d 377 (July 10, 2008). No confrontation violation; Crawford doesn’t apply where lab supervisor testified to his own opinions and conclusions based on tests performed by lab technician who didn’t testify. “The report itself was not introduced into evidence. The only evidence offered at trial of the chemical makeup of the substance, an essential element of the crime, was the supervisor's testimony based solely on the technician's lab report.” “In this case, the technician's conclusions were not submitted to the jury, and the State concedes that admission of the report itself containing the lab tech's conclusions would have violated the defendant's Confrontation Clause rights. The expert's testimony was proper, however, because the supervisor came to her own independent conclusion that the substance was methamphetamine based on the chemical ‘fingerprint’ from the GCMS [gas chromatography/mass spectrometry] test. We have long held that an expert need not ‘testify to the validity of every step that went into the formulation of his results as a foundation for their admissibility.’ Robinson v. State, 231 Ga.App. 368, 370(3), 498 S.E.2d 579 (1998), quoting Orr v. Indiana, 472 N.E.2d 627, 633-634(2) (Ind.App., 1984). Also, an expert may base his opinion on data collected by others. Harkness v. State, 225 Ga.App. 864, 869(7), 485 S.E.2d 810 (1997); Caldwell v. State, 230 Ga.App. 46, 495 S.E.2d 308 (1997). In Byrd v. State, 261 Ga.App. 483, 583 S.E.2d 170 (2003), we held that the trial court did not err in allowing a GBI chemist's supervisor to testify that a tested substance was cocaine, based on his review of the lab technician's file and the output generated by two different tests. The supervisor compared the results to published data to determine whether the substance tested was cocaine. We held that an expert's lack of personal knowledge ‘does not mandate the exclusion of his opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. [Cit.]’ Id. at 484, 583 S.E.2d 170.” “Because ‘the critical inquiry is not whether it might be reasonably anticipated that a statement will be used at trial but the circumstances under which the statement was made,’ California v. Geier, [41 Cal.4th 555, 607, 61 Cal.Rptr.3d 580, 161 P.3d 104 (2007)], the trial court did not err in allowing the expert witness to testify based on the data contained in the technician's report.” Accord, Boone v. State , 293 Ga.App. 654, 667 S.E.2d 880 (September 23, 2008) (one chemist could testify that substance testified positive based on another chemist’s “analytical findings”); Watkins v. State, 285 Ga. 355, 676 S.E.2d 196 (April 28, 2009) (same as Boone ; toxicologist properly allowed to testify to her own opinions after reviewing data and testing procedures from another GBI employee); Bradberry v. State , 297 Ga.App. 679, 678 S.E.2d 131 (May 4, 2009); Reddick v. State , 298 Ga.App. 155, 679 S.E.2d 380 (June 1, 2009); Rector v. State , 285 Ga. 714, 681 S.E.2d 157 (July 9, 2009) ( distinguishing Melendez-Diaz v. Massachusetts , 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (June 25, 2009), where expert affidavits ruled inadmissible under Confrontation Clause); England v. State , 302 Ga.App. 12, 689 S.E.2d 833 (December 2, 2009) (“The toxicologist testified that in analyzing blood samples for blood-alcohol content, the lab technician ‘just takes a specimen of the blood, places it in a glass vial and seals it up.’”); Haywood v. State , 301 Ga.App. 717, 689 S.E.2d 82 (December 16, 2009); Carolina v. State , 302 Ga.App. 40, 690 S.E.2d 435 (January 13, 2010); Ferrell v. State , 312 Ga.App. 122, 717 S.E.2d 705 (October 18, 2011). But see Bullcoming v. New Mexico , 09-10876, ___ U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610, 2011 WL 2472799 (June 23, 2011) (improper to admit into evidence “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.” See full note on Bullcoming at subheading Business Records, above .). 7. FORFEITURE BY WRONGDOING Brittain v. State, 329 Ga.App. 689, 766 S.E.2d 106 (November 17, 2014). Aggravated assault and related convictions affirmed. No confrontation violation in admission of victim’s statements to police; trial court properly concluded, by preponderance of the evidence, that forfeiture-by-wrongdoing doctrine applied. 1. Preponderance of evidence standard. “[A]lthough the Supreme Court of the United States has taken no position on the standard necessary to demonstrate forfeiture by wrongdoing, it has noted that both federal and state courts tend to hold the Government to a preponderance- of-the-evidence standard to establish same.[Cits.]” 2. Evidence of wrongdoing. Evidence supported finding that defendant was responsible for victim’s disappearance, including her failure to return for her children, blood found in her home, and later location of her abandoned car with a “substantial amount” of blood and a strange liquid. Disappearance happened just two days after victim applied for food stamps at the office where defendant’s girlfriend worked. Defendant’s cellmate “claimed that Brittain said he was not worried about [victim] Jones testifying against him at his trial.” “Indeed, Georgia's new evidence code has codified the forfeiture-by-wrongdoing exception for hearsay evidence, see OCGA § 24–8–804(b)(5); see generally RONALD L. CARLSON & MICHAEL SCOTT, CARLSON ON EVIDENCE 509–14 (2 nd ed., 2014) (discussing the forfeiture exception to the hearsay rule in Georgia's new evidence code); PAUL S. MILICH, GEORGIA RULES OF EVIDENCE § 19:35 (2014) (same), providing that ‘[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness’ shall not be excluded by the hearsay rule if the declarant is unavailable as a witness.”