ON SECOND REMAND

SAAD, J.

In light of a recent United States Supreme Court case that further defines the scope of the rights granted under the Confrontation Clause, Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), our Supreme Court remanded this case for us to address whether the trial court violated defendant's confrontation rights when it admitted expert testimony that was based on a report prepared by nontestifying forensic analysts. For the reasons set forth in this opinion, we affirm defendant's conviction because, though we hold that a Confrontation Clause violation occurred, the error was harmless beyond a reasonable doubt.

I. FACTS AND PROCEEDINGS

The trial court convicted defendant of second-degree murder, MCL 750.317, for causing the death of her domestic partner, Paul Michael Burley. At trial, the prosecution maintained that defendant injected Burley with insulin because she was frustrated and overwhelmed by the demands of attending to Burley's considerable medical needs. Defendant used insulin to treat her own diabetes, and she knew that insulin breaks down almost immediately upon death and cannot be detected in a dead body. Defendant took the position at trial that Burley died from a morphine overdose or, if he died from an insulin injection, he committed suicide in order to relieve defendant of the burden of caring for him.

In People v. Dendel, unpublished opinion per curiam of the Court of Appeals, issued July 18, 2006 (Docket No. 247391), 2006 WL 2000148 (Dendel I), we reversed defendant's conviction and remanded for a new trial on the basis of defendant's claim of ineffective assistance of counsel. Our Supreme Court reversed and remanded this case for us to consider defendant's remaining issues raised on appeal. People v. Dendel, 481 Mich. 114, 748 N.W.2d 859 (2008). In People v. Dendel (On Remand), unpublished opinion per curiam of the Court of Appeals, issued September 11, 2008 (Docket No. 247391), 2008 WL 4180292 (Dendel II), we affirmed defendant's conviction. Defendant sought leave to appeal, and, in lieu of granting leave to appeal, the Supreme Court vacated in part this Court's judgment and remanded the case for reconsideration of defendant's Confrontation Clause and hearsay issues in light of Melendez-Diaz. People v. Dendel, 485 Mich. 903, 773 N.W.2d 16 (2009).

II. OUR DECISION IN DENDEL II

Defendant's hearsay and Confrontation Clause arguments concern the testimony of Dr. Michael Evans. In Dendel II, we summarized the relevant facts as follows:

Defendant argued in Dendel II that the trial court abused its discretion by admitting Dr. Evans's testimony about the results of toxicology tests of Burley's bodily fluids because Dr. Evans did not perform the tests. Id. Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), defendant contended that the admission of this hearsay testimony violated her rights under the Confrontation Clause. Because defendant failed to preserve this issue with a timely challenge to Dr. Evans's testimony based on the Confrontation Clause, we reviewed the matter for plain error affecting her substantial rights. Dendel II, unpub. op. at 3. We concluded that the statements contained in the toxicology report were not testimonial, and they could be admitted without affording defendant an opportunity to cross-examine the analysts from the lab. We distinguished the toxicology report from the laboratory report that was deemed inadmissible in People v. Lonsby, 268 Mich.App. 375, 707 N.W.2d 610 (2005):

After we issued our opinion in Dendel II, the United States Supreme Court issued its decision in Melendez-Diaz, Because this decision directly addressed the question of a defendant's confrontation rights in the context of laboratory reports prepared by nontestifying witnesses, our Supreme Court remanded Dendel to this Court in order to reexamine Confrontation Clause issues arising from Dr. Evans's reliance on glucose-level findings made by nontestifying personnel at AIT Laboratories.

III. CONFRONTATION CLAUSE JURISPRUDENCE

To decide whether the admission of hearsay evidence violated defendant's due-process right to confront witnesses, we must examine recent Supreme Court decisions interpreting the Confrontation Clause. Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c); People v. McLaughlin, 258 Mich.App. 635, 651, 672 N.W.2d 860 (2003). Generally, hearsay is inadmissible unless it comes within an exception to the hearsay rule. McLaughlin, 258 Mich.App. at 651, 672 N.W.2d 860. Controversies over the admission of hearsay statements may also implicate the Confrontation Clause, U.S. Const. Am. VI, which guarantees a criminal defendant the right to confront the witnesses against him or her. See also Const 1963, art 1, § 20.

In Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354, the United States Supreme Court held that the Sixth Amendment bars the admission of testimonial statements by a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. A pretrial statement is testimonial if the declarant should reasonably have expected the statement to be used in a prosecutorial manner and if the statement was made under circumstances that would cause an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52, 124 S.Ct. 1354; Lonsby, 268 Mich.App. at 377, 707 N.W.2d 610. In Davis v. Washington, 547 U.S. 813, 817-822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court considered whether statements that a crime victim made to a 911 emergency operator describing an ongoing assault were testimonial statements subject to confrontation under the Confrontation Clause. The Court ruled that the statements were not testimonial. Id. at 829, 126 S.Ct. 2266. However, in the companion case, Hammon v. Indiana, police officers responding to a report of a domestic disturbance questioned the alleged victim regarding the assault that had just taken place. When the police first arrived, the victim denied that any assault had occurred, but when the officers questioned her outside the defendant's presence, she signed an affidavit stating that the defendant had assaulted her. Id. at 820-821, 126 S.Ct. 2266. The Court concluded that these statements were testimonial because they were made in response to an investigation of possible criminal conduct that had occurred in the past, rather than an ongoing situation. Id. at 829-830, 126 S.Ct. 2266.

The Supreme Court held that statements are not testimonial "when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis, 547 U.S. at 822, 126 S.Ct. 2266. On the other hand, "[t]hey are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. The Court in Davis further explained that "in the final analysis [it is] the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Id. at 822 n. 1, 126 S.Ct. 2266; see also People v. Bryant, 483 Mich. 132, 139-140, 768 N.W.2d 65 (2009), cert. gtd. 559 U.S. ___, 130 S.Ct. 1685, 176 L.Ed.2d 179 (2010).

In Bryant, 483 Mich. at 140, 768 N.W.2d 65, our Supreme Court observed that Davis differed from Crawford because, in Davis (1) the victim was speaking about events as they were happening, rather than describing past events, (2) the victim was experiencing an ongoing emergency, (3) the victim's statements were made to help address the ongoing emergency, rather than to disclose past events, and (4) the victim made the statements frantically, rather than in a tranquil or safe environment. The Court in Bryant also set forth the factors that tended to establish that the statements in Hammon were testimonial: (1) the statements were made in response to an interrogation that was part of an investigation into "`possibly criminal past conduct,'" (2) the statements were not made contemporaneously with an ongoing emergency, and (3) the officer's questions were not intended to learn what was happening, but what had already happened. Id. at 141, 768 N.W.2d 65, citing Davis, 547 U.S. at 829-830, 126 S.Ct. 2266.

After we issued our opinion in Dendel II, the United States Supreme Court issued its decision in Melendez-Diaz. The prosecution had charged the defendant in Melendez-Diaz with narcotics-trafficking offenses. In order to prove that the substance in question was cocaine of a certain quantity, the prosecution introduced into evidence sworn certificates of state laboratory analysts documenting the results of tests performed on the material seized by the police. Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2531, 174 L.Ed.2d at 320-321. Building on the principles established in Crawford and Davis, a majority1 of the Supreme Court determined that the certificates constituted testimonial statements because they were made under circumstances in which an expert witness would anticipate their future use at trial and also because they served as the "`prima facie evidence of the composition, quality, and the net weight' of the analyzed substance" under the relevant Massachusetts statutes. Id. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 321 (citation omitted). The Court concluded that, "[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to "`be confronted with'" the analysts at trial." Id. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 322, quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354. In response to the dissenting justices, the majority explained in a footnote that its ruling did not require "that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device" was required to testify in person; rather, it was "up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live." Melendez-Diaz, 557 U.S. at ___ n. 1, 129 S.Ct. at 2532 n. 1, 174 L.Ed.2d at 322 n. 1.

Responding to various other arguments raised by the dissent and the prosecution, the Court rejected the assertion that the analysts were not "accusatory" witnesses, and therefore not subject to confrontation. The Court commented that the Confrontation Clause "contemplates two classes of witnesses"—those against the defendant and those in his favor—omitting a third category of witnesses who were "helpful to the prosecution, but somehow immune from confrontation." The Court was not persuaded that the analysts' statements were exempt from the Confrontation Clause on the ground that the statements were not independently sufficient to establish the defendants' guilt. Id. at ___, 129 S.Ct. at 2533-2534, 174 L.Ed.2d at 323. The Court also was not persuaded by the attempt of the prosecution and the dissent to distinguish the analysts' statements from "`convention'" or "`typical'" ex parte testimony when the witness observed the crime or human action related to it or when the witness's statements were given in response to interrogation. Id. at ___, 129 S.Ct. at 2534-2536, 174 L.Ed.2d at 324-325.

The Court in Melendez-Diaz also rejected the dissent's and the prosecution's arguments that the reliability of objective, neutral scientific testing obviated the need for confrontation and that cross-examination was an inferior method of challenging scientific testing. The Court stated:

Finally, the Court in Melendez-Diaz addressed the argument that the analysts' affidavits were admissible without subjecting the analysts to confrontation under the business-records exception to the hearsay rules. The Court concluded that the certificates were not admissible as business records because they were more akin to reports generated by law-enforcement officials. Id. at ___, 129 S.Ct. at 2538, 174 L.Ed.2d at 328. The Court further commented that the prosecution misunderstood the relationship between the hearsay exception for business and official records and the Confrontation Clause. The Court stated:

The Court demurred to the dissent's remaining assertions that its holding drastically departed from prior jurisprudence or that it would "commence the parade of horribles" unfairly hampering prosecution of drug charges. Id. at ___, 129 S.Ct. at 2542, 174 L.Ed.2d at 332.

Several post-Melendez-Diaz cases have addressed Confrontation Clause issues in the context of autopsy reports or similar reports containing scientific data. In People v. Lewis, unpublished opinion per curiam of the Court of Appeals, issued April 15, 2008 (Docket No. 274508), 2008 WL 1733718, this Court had ruled that no Confrontation Clause violation occurred when the medical examiner testified with regard to an opinion based on an autopsy report prepared by two nontestifying medical examiners. The Supreme Court, in lieu of granting leave to appeal, vacated in part the judgment of the Court of Appeals and remanded the case to the Court of Appeals for reconsideration of this issue in light of Melendez-Diaz. People v. Lewis, 485 Mich. 878, 772 N.W.2d 47 (2009). On remand, this Court ruled that the autopsy report was not testimonial. The Court distinguished the autopsy report from the certificates in Melendez-Diaz because the certificates were prepared for the sole purpose of providing prima facie evidence against the defendant at trial, whereas the autopsy report was prepared pursuant to a duty imposed by statute. People v. Lewis (On Remand), 287 Mich.App. 356, 362-363, 788 N.W.2d 461 (2010). The Court further commented that "unlike the way the certificates in Melendez-Diaz, were used, Dr. [Carl] Schmidt [the testifying medical examiner] formed independent opinions based on objective information in the autopsy report and his opinions were subject to cross-examination." Id. at 363, 788 N.W.2d 461. The Court also noted that the autopsy report "was not outcome determinative" because "`[t]here is no dispute that a crime was committed, and the autopsy did not aid in establishing the identity of the perpetrator, which was the central issue in this case.'" Id., quoting Lewis, unpub. op. at 5. (The autopsy report was not necessary to establish that the victim died of multiple stab wounds.)

In Commonwealth v. Avila, 454 Mass. 744, 760, 912 N.E.2d 1014 (2009), the Massachusetts Supreme Judicial Court held that a substitute medical examiner could testify about his own opinions and conclusions concurring the cause of the decedent's death, though his opinions were based on findings set forth in an autopsy report prepared by his predecessor, who did not testify at trial. However, the court held that the substitute medical examiner could not testify about the facts and findings themselves on direct examination. Id. at 760-761, 912 N.E.2d 1014. The court explained that an expert without firsthand knowledge of the facts at issue is permitted to state an expert opinion based on facts assumed in hypothetical questions or on data properly admitted into evidence. Id. at 761, 912 N.E.2d 1014. The court stated:

The Massachusetts Supreme Judicial Court held that the trial court erred when it allowed the substitute medical examiner to testify on direct examination regarding the findings in the autopsy report, but it concluded that the unpreserved error "did not result in a substantial likelihood of a miscarriage of justice" because the erroneously admitted testimony was cumulative of other properly admitted evidence. Id. at 763, 912 N.E.2d 1014.

In State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (2009), the state's chief medical examiner, Dr. John Butts, testified about the victim's cause of death on the basis of an autopsy report that he did not prepare. He also testified about the identification of the victim on the basis of forensic dentistry. The pathologist who performed the autopsy, Dr. Karen Chancellor, and the dentist who made the identification, Dr. Jeffrey Burkes, did not testify. Id. at 451, 681 S.E.2d 293. The North Carolina Supreme Court held that "[t]he admission of such evidence violated defendant's constitutional right to confront the witnesses against him. . . ." Id. at 452, 681 S.E.2d 293. However, the court held that the error was harmless beyond a reasonable doubt because the defendant's guilt was established by substantial admissible evidence, including his own confession. Id. at 452-453, 681 S.E.2d 293.

Following Melendez-Diaz, at least two courts have held that factual statements from nontestifying forensic analysts may be used to support the conclusions and opinions of testifying expert witnesses. In People v. Johnson, 394 Ill.App.3d 1027, 333 Ill.Dec. 774, 915 N.E.2d 845 (2009), the prosecution introduced evidence that the defendant's DNA matched a semen stain found at the crime scene. The prosecution introduced the evidence through the testimony of a DNA analyst, Charlotte Word, who reviewed DNA testing conducted by others. Id. at 1029, 333 Ill.Dec. 774, 915 N.E.2d 845. Ms. Word testified that she was able to determine from the notes and documentation in the laboratory folder that the proper procedures were followed with the appropriate control tests. Id. Brian Schoon, who performed the tests, also testified, but the analysts who prepared the defendant's sample profile did not. Id. at 1030, 333 Ill.Dec. 774, 915 N.E.2d 845. The defendant argued that this violated his Confrontation Clause rights because he did not have the opportunity to cross-examine any of the analysts who prepared the profile. Id. The court found no error, stating:

The court also noted that DNA analysis results are not "accusatory" because they might lead to either incriminatory or exculpatory results. Id. at 1035, 333 Ill.Dec. 774, 915 N.E.2d 845.

In Johnson, the Illinois court ruled that its analysis under Crawford was not altered by the Supreme Court's decision in Melendez-Diaz. The court quoted the footnote in Melendez-Diaz disclaiming the inference that all persons involved in the chain of custody, authenticity of the sample, or accuracy of the testing device were required to give live testimony. Id. at 1036-1037, 333 Ill.Dec. 774, 915 N.E.2d 845. The court also stated:

The court held that "the holding in Melendez-Diaz is distinguishable from instances in which a witness testifies at trial about scientific analyses in which he or she did not participate in the analysis. . . ." Id. at 1038, 333 Ill.Dec. 774, 915 N.E.2d 845.

The court in Johnson relied substantially on a decision from the California Court of Appeal, People v. Rutterschmidt, 176 Cal.App.4th 1047, 98 Cal.Rptr.3d 390 (2009). In Rutterschmidt, two co-defendants, Olga Rutterschmidt and Helen Golay, were accused of fatally drugging one of their victims, Kenneth McDavid, to collect money from fraudulently obtained life insurance policies. Golay, but not Rutterschmidt, objected on Confrontation Clause grounds to the testimony of Joseph Muto, the chief laboratory director of the Los Angeles County Department of Coronor, who testified about the presence and quantity of prescription drugs and alcohol found in McDavid's blood samples. The court summarized Muto's testimony regarding his involvement in the testing as follows:

Muto verified that the analyses were performed according to laboratory procedures and that he reviewed the reports. Id. at 1072, 98 Cal.Rptr.3d 390.

The court in Rutterschmidt commented that there was "no federal Supreme Court or California authority for the proposition that Crawford precludes a prosecution scientific expert from testifying as to an opinion in reliance upon another scientist's report." Id. at 1073, 98 Cal.Rptr.3d 390. The court rejected Golay's argument that the Supreme Court's decision in Melendez-Diaz warranted a different result. It distinguished the toxicological findings from the sworn certificates in Melendez-Diaz on the ground that the former were not sworn affidavits entered into evidence. The court stated:

The court affirmed Golay's conviction. Id. at 1087, 98 Cal.Rptr.3d 390. On December 2, 2009, the California Supreme Court granted Golay's petition for review, limited to the issue whether Muto's testimony violated Golay's right to confront witnesses and whether the decision in Melendez-Diaz affected the decision. People v. Rutterschmidt, 102 Cal.Rptr.3d 281, 220 P.3d 239 (2009).

We also take into consideration two cases decided before Melendez-Diaz that addressed the issue of hearsay evidence to establish objective data underlying an expert's opinion. In United States v. Richardson, 537 F.3d 951 (C.A.8, 2008), a case involving DNA evidence that linked the defendant to a firearm, the prosecution called Alyssa Bance, a forensic scientist with the Minnesota Bureau of Criminal Apprehension. The court summarized Bance's testimony as follows:

Bance "did not perform or witness any DNA testing of the samples," but "testified as to the tests Kuriger performed and the procedures and controls Kuriger used, as well as the results of Bance's own independent analysis of Kuriger's data." Bance "admitted her only knowledge of the tests was from reviewing the paperwork Kuriger generated, conducting a second independent analysis of Kuriger's data, and comparing her analysis of the data with Kuriger's analysis of the same data." Id. at 956. Reviewing the Confrontation Clause issue under the plain-error standard for unpreserved issues, the court concluded that the error, if any, was not plain error. The court noted that neither the United States Supreme Court nor the United States Court of Appeals for the Eighth Circuit had addressed the question whether DNA samples and related testimony were testimonial. It commented that other federal courts had ruled that DNA samples themselves are not testimonial. Id. at 960. The Court further held:

The Supreme Court denied certiorari in Richardson a month before issuing its decision in Melendez-Diaz. Richardson v. United States, 556 U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1299 (2009).

In United States v. De La Cruz, 514 F.3d 121 (C.A.1, 2008), the United States Court of Appeals for the First Circuit rejected a defendant's argument that his Confrontation Clause rights were violated when the chief medical examiner for the state of New Hampshire, Dr. Thomas Andrew, testified as an expert regarding the victim's cause of death. Dr. Andrew had not performed the autopsy or conducted the toxicological tests, but he relied on autopsy and toxicology reports prepared by others. Id. at 132-133. The court ruled that autopsy reports are not subject to Confrontation Clause rights, stating as follows:

The court was "unpersuaded that a medical examiner is precluded under Crawford from either (1) testifying about the facts contained in an autopsy report prepared by another, or (2) expressing an opinion about the cause of death based on factual reports—particularly an autopsy report— prepared by another." Id. at 134. The Supreme Court denied certiorari in De La Cruz only four days after it issued its opinion in Melendez-Diaz. De La Cruz v. United States, 557 U.S. ___, 129 S.Ct. 2858, 174 L.Ed.2d 600 (2009).

Thus, at least one post-Melendez-Diaz case, Avila, 454 Mass. 744, 912 N.E.2d 1014, holds that statements asserting objective scientific data are testimonial statements subject to confrontation under the Sixth Amendment and, therefore, are not admissible absent an opportunity to cross-examine the witness who produced the statement. At least three post-Melendez-Diaz cases, including one from this Court, Lewis (On Remand), 287 Mich.App. 356, 788 N.W.2d 461, Johnson, 394 Ill.App.3d 1027, 333 Ill.Dec. 774, 915 N.E.2d 845, and Rutterschmidt, 176 Cal.App.4th 1047, 98 Cal.Rptr.3d 390, permit the introduction of such statements if they form the factual basis of a testifying expert witness's opinion. We also have two pre-Melendez-Diaz cases, Richardson, 537 F.3d 951, and DeLa Cruz, 514 F.3d 121, that hold that hearsay statements asserting objective scientific data are not testimonial under Crawford.

IV. APPLICATION OF MELENDEZ-DIAZ AND ITS PROGENY

We hold that the statements here are testimonial. We would be bound by Lewis (On Remand), 287 Mich.App. 356, 788 N.W.2d 461, under the principle of stare decisis, MCR 7.215, if Lewis were factually analogous. However, the Court in Lewis ruled that the autopsy report was nontestimonial because it was prepared pursuant to a legal duty. Here, the AIT laboratory performed the glucose tests at the request of the medical examiner, who asked for the testing to investigate the possibility that Burley died of an insulin injection. Dr. Bernardino Pacris, the medical examiner, had originally concluded that Burley died of natural causes, but he reopened the case when the police informed him of suspicious circumstances that raised the question whether defendant may have used her insulin to end Burley's life. Dr. Pacris testified, "After talking again with the police officer, I believe there was an issue that insulin might have been given to Mr. Burley. . . . We contacted AIT laboratory. We requested tests to see if . . . it can provide us some light." He further acknowledged that he requested testing for glucose, C-peptides, and insulin because he learned about the possibility of insulin involvement in Burley's death. The medical examiner did not merely delegate to the AIT laboratory an ordinary duty imposed by law: he sought from the lab specific information to investigate the possibility of criminal activity. Under these circumstances, any statements made in relation to this investigation took on a testimonial character. Although Dr. Evans testified that toxicological testing is normally performed without any case background and without preconceived notions about what might be found, the testing here was performed in anticipation of a criminal trial, after the medical examiner's original findings had been challenged. The holdings in Crawford and Melendez-Diaz caution that, under the Confrontation Clause, defendant did not have to take Dr. Evans at his word about the test results, but instead had the right to show that "[f]orensic evidence is not uniquely immune from the risk of manipulation," or that "[a] forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive— to alter the evidence in a manner favorable to the prosecution." Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2536, 174 L.Ed.2d at 326. For these reasons, the statement that Burley died with a glucose level of zero was a testimonial statement.

We further observe that in Lewis the cause of death was not a central issue because there was no question that the victim died from multiple stab wounds. Rather, the pivotal issue in Lewis was whether the defendant was the person who inflicted the stab wounds. The autopsy findings had no relevance to the issue of the perpetrator's identity. In contrast, Burley's cause of death is the primary factual question in this case. Evidence regarding the glucose finding does not conclusively prove defendant's guilt, because questions remain about the significance of the result and there remains the possibility that the death was suicide. However, it supports the prosecution's theory that Burley died of an insulin injection.

Of the aforementioned cases, we find Avila, 454 Mass. 744, 912 N.E.2d 1014, to be the most persuasive, the most consistent with the Supreme Court's holding in Melendez-Diaz, and the most factually analogous to this case. The court in Avila held that statements in an autopsy report prepared by a nontestifying medical examiner were subject to confrontation, not-withstanding that the statements served as the facts underlying the testifying expert's opinion. Similarly, the court in Locklear, 363 N.C. 438, 681 S.E.2d 293, concluded that statements in an autopsy report and forensic dentistry report were subject to confrontation. These holdings are fully consistent with Melendez-Diaz. Quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354, the Supreme Court in Melendez-Diaz explained that "`ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially'" came within the "`core class of testimonial statements'" subject to the Confrontation Clause. Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2531, 174 L.Ed.2d at 321 (emphasis added). The Court concluded that statements certifying the results of qualitative and quantitative analysis of the substance in question came within this class because they were functionally equivalent to live, in-court testimony. Id. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 321. The Court rejected the argument that the analysts who prepared the statements were not "accusatory" witnesses in that they did not directly accuse the defendant of wrongdoing. Id. at ___, 129 S.Ct. at 2533, 174 L.Ed.2d at 323.

As noted, the Melendez-Diaz Court also rejected the argument that "neutral scientific testing" obviated the need for confrontation. The Court disagreed that purportedly "neutral" testing was necessarily as neutral or as reliable as the prosecution suggested, commenting that forensic scientists are not immune from error or to pressures to speed up their work or obtain a particular result. Id. at ___, 129 S.Ct. at 2536-2537, 174 L.Ed.2d at 325-326. The Court stated:

And, as discussed, the Court in Melendez-Diaz rejected the proposition that the certificates were business records not subject to confrontation. The Court noted that the certificates were more akin to police reports because they were intended mainly for use in the courts. Id. at ___, 129 S.Ct. at 2538, 174 L.Ed.2d at 328.

Here, the laboratory technicians' finding that Burley's glucose level was zero at the time of death was the fact on which Dr. Evans based his opinion that an insulin injection was a possible cause of his death. Although the statement concerning a glucose level of zero has no independently incriminating effect, it was nonetheless an accusatory statement under Melendez-Diaz because it supported the prosecution's theory that defendant had killed Burley by injecting him with insulin. Although the glucose-level finding was purportedly the result of neutral scientific testing, the Court in Melendez-Diaz ruled that such testing is not exempt from the Confrontation Clause because of the possibility of error or bias. Id. at ___, 129 S.Ct. at 2536, 174 L.Ed.2d at 326. There was no testimony concerning how such tests are conducted or whether the tests of Burley's fluid samples were conducted in accordance with testing protocols. Moreover, Dr. Evans gave no testimony to establish that he directly supervised the tests or independently verified that all testing protocols were observed.

We also hold that the technicians' statement of a zero-glucose finding comports with the factors indicating a testimonial statement as delineated in Davis, 547 U.S. 813, 126 S.Ct. 2266, and analyzed in Bryant, 483 Mich. 132, 768 N.W.2d 65. Their involvement occurred only after the police advised the medical examiner that defendant was suspected of injecting Burley with insulin, prompting the medical examiner to request toxicological analysis. Burley's autopsy and the subsequent toxicological testing were not a neutral or objective investigation of an unexplained death, but a criminal investigation into whether a homicide had occurred in the past. The technicians' statements were not made contemporaneously with an ongoing emergency, but in response to an inquiry about past events. Bryant, 483 Mich. at 141, 768 N.W.2d 65.

We are unpersuaded that the federal circuit court decisions in Richardson, 537 F.3d 951, and De La Cruz, 514 F.3d 121, counsel a different outcome. The courts in those cases emphasized that the autopsy reports in question only formed the factual bases for the experts' conclusions and that the experts were not acting merely as a conduit for another's opinion. Theoretically, this approach could provide a basis for distinguishing the instant case from Melendez-Diaz, on the ground that the certificates in Melendez-Diaz were a final statement sufficient in themselves to establish an element of the crime, whereas the glucose-level finding was only a factual finding that Dr. Evans determined was consistent with the prosecution's theory of the cause of death. While we recognize the distinction, we are unconvinced that classifying a statement as a fact in support of an expert's conclusion rather than the conclusion itself negates evidentiary or Confrontation Clause concerns.

Previously, we ruled that the glucose report was admissible under the hearsay exception for public records. However, the Supreme Court in Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2538, 174 L.Ed.2d at 328, held that the cocaine-analysis certificates were not public records or business records exempt from confrontation because they were more akin to police reports. This holding applies by analogy to the glucose report, which was obtained in response to a medical examiner's request in the course of investigating a suspicious death. Moreover, under Crawford, out-of-court statements are not exempt from confrontation merely because they come within a hearsay exception, including hearsay exceptions traditionally considered to be imbued with indicia of reliability.

Furthermore, this case is distinguishable from Richardson, 537 F.3d 951, because the testifying expert in Richardson had greater personal involvement in the testing process than Dr. Evans had in the glucose testing. In Richardson, a forensic scientist, Bance, performed a peer review, verifying that Kuriger, another scientist, conducted a thorough and proper analysis. Id. at 955-956. Although Dr. Evans supervised the AIT laboratory, he did not give any testimony regarding his supervision of the glucose testing.

Finally, we are unpersuaded by the holding in Rutterschmidt, 176 Cal.App.4th 1047, 98 Cal.Rptr.3d 390, that the toxicological findings were distinguishable from the certificates in Melendez-Diaz because the certificates were sworn affidavits made expressly for trial. The salient concern in Melendez-Diaz was that the prosecutor used hearsay statements in lieu of live testimony to establish a scientific fact that was key to the prosecution's case, denying the defendant the opportunity to cross-examine the persons who performed the tests and issued the certificates. The concern that this use of hearsay implicates the Confrontation Clause is not diminished when the statement is unsworn rather than sworn.

We therefore conclude that defendant's Sixth Amendment right to confront witnesses was violated when Dr. Evans was permitted to give hearsay testimony that other persons in the AIT laboratory determined that Burley's glucose level was zero at the time of his death.

V. RELIEF

As noted, defendant failed to raise a timely objection to Dr. Evans's testimony on Confrontation Clause grounds. However, the trial in this case took place before Melendez-Diaz and Crawford were decided. The applicable test when defendant was tried, enunciated by the Court in Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), provided that out-of-court statements made by unavailable witnesses could be admitted without violating a defendant's confrontation right if there were sufficient indicia of reliability under evidentiary hearsay rules. Under these circumstances, an objection based on the Confrontation Clause would have been futile. Furthermore, at the time of trial, MRE 703 did not require, as it now does, that the facts or data "upon which an expert bases an opinion or inference shall be in evidence." Also, pre-Crawford/Melendez-Diaz caselaw in Michigan tended to regard autopsy reports and similar evidence as admissible hearsay exempt from the Confrontation Clause.2 Defense counsel's failure to object can be attributed to the absence of any positive legal authority that Dr. Evans's testimony violated the Confrontation Clause. Accordingly, defendant's objection on hearsay grounds, but not under the Confrontation Clause, was reasonable in light of the state of the law at the time of her trial.

Fundamental fairness requires that this issue be reviewed as though it were fully preserved. See People v. Shirk, 383 Mich. 180, 196, 174 N.W.2d 772 (1970); People v. Townsend, 25 Mich.App. 357, 361-362, 181 N.W.2d 630 (1970); see also Lonsby, 268 Mich.App. at 394-395, 707 N.W.2d 610.3 We review preserved issues of constitutional error to determine whether they are harmless beyond a reasonable doubt. "A constitutional error is harmless if `[it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" People v. Mass, 464 Mich. 615, 640 n. 2, 628 N.W.2d 540 (2001), quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In other words, if it is beyond a reasonable doubt that the jury would have convicted defendant on the basis of untainted evidence, defendant is not entitled to a new trial.

The trial court specifically ruled, "I find that [Burley] really died from having a zero glucose level." This wording suggests that the trial court considered the zero-glucose finding in its holding. However, as our Supreme Court observed in Dendel, 481 Mich. 114, 748 N.W.2d 859, ample other evidence supported defendant's conviction. Defendant argues that Dr. Evans should not have been allowed to testify about the finding of no glucose in Burley's system after he died. But Dr. Pacris testified before Dr. Evans, and he also noted that there was a lack of glucose in Burley's bodily fluids. As our Supreme Court stated, "Dr. Pacris explained that, although the glucose levels in a person's bodily fluids drop immediately after the person dies, the complete lack of glucose in Burley's vitreous fluids was consistent with a finding that Burley had been injected with insulin." Id. at 126, 748 N.W.2d 859. We further note that Dr. Pacris repeatedly attached little importance to a failure to find glucose in Burley's blood after he died because "glucose drops instantly once we die." Moreover, Dr. Pacris testified that Burley died of hypoglycemic shock, and he did not base his conclusion on the toxicological data. As our Supreme Court noted:

In her dissent, Justice KELLY agreed that "[t]he process by which Dr. Pacris determined the cause of death was founded on an anatomical basis and the circumstances surrounding the death rather than on toxicological findings." Id. at 142, 748 N.W.2d 859 (KELLY, J., dissenting).

As our Supreme Court also observed, defense counsel took the position at trial that "Burley had died either by injecting himself with insulin or from the side effects of numerous medications prescribed for him." Id. at 121, 748 N.W.2d 859 (majority opinion). The importance of the zero-glucose finding is severely undermined by this defense, which accepts the fact that Burley may have taken insulin and merely avers that Burley injected it into himself. The Supreme Court further stated in the opinion:

It makes little difference that the fact-finder heard inadmissible testimony that Burley's fluids showed a lack of glucose, which would suggest that insulin was introduced into his system, in light of evidence that defendant believed Burley could have taken insulin.

Moreover, evidence other than the scientific findings played a significant role in defendant's conviction:

In light of Dr. Pacris's testimony, defendant's position at trial, and the circumstantial evidence surrounding Burley's death, we hold that it is clear beyond a reasonable doubt that a reasonable jury would have convicted defendant absent the inadmissible evidence regarding the toxicological results. Accordingly, the Confrontation Clause error was harmless beyond a reasonable doubt, and defendant is not entitled to a new trial.

Affirmed.

BORRELLO, P.J., concurred.

WILDER, J. (concurring).

I concur in the result reached by the majority. I write separately to address the majority's conclusion that defendant's failure to object, on Confrontation Clause grounds, to the testimony of Dr. Michael Evans, founder, president, chief executive officer, and director of operations at AIT Laboratories,1 was reasonable given the then existing state of the law and that, therefore, fundamental fairness requires that we treat this issue as though it had been properly preserved.

"Due process requires fundamental fairness, which is determined in a particular situation first by `considering any relevant precedents and then by assessing the several interests that are at stake.'" In re Brock, 442 Mich. 101, 111, 499 N.W.2d 752 (1993), quoting Lassiter v. Dep't of Social Servs., 452 U.S. 18, 25, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); see the observation in 16B Am Jur 2d, Constitutional Law, § 948, pp. 448-49 ("That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, and thus violative of due process may, in other circumstances and in the light of other considerations, fall short of such denial."). "This Court has said that due process considerations include not only (1) the nature of the private interest at stake, but also (2) the value of the additional safeguard, and (3) the adverse impact of the requirement upon the Government's interests." United States v. Ruiz, 536 U.S. 622, 631, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002).

The majority first concludes that under Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the statements concerning the toxicological testing performed at AIT Laboratories and, in particular, the glucose levels obtained as a result of the testing, were testimonial in nature and that, therefore, Dr. Evans testimony concerning the testing violated defendants Sixth Amendment right to confront witnesses. I agree. The majority then concludes that "fundamental fairness" requires retroactive application of the rights of confrontation provided by the Confrontation Clause as a remedy for the violation, so that defendants posttrial objection to the offending statements on Confrontation Clause grounds must be treated as having been made at trial and preserved, even though it actually was not.

I respectfully disagree that fundamental fairness requires imposition of the legal fiction proposed by the majority.

First, although defendant certainly has an interest in confronting the incriminating statements against her, there is little probative value to defendant in treating the Confrontation Clause objection as preserved, even though it actually was not, because there was more than sufficient other evidence, to which no credible challenge has been made, in support of the trial court's finding that defendant was guilty of second-degree murder, MCL 750.317, beyond a reasonable doubt. In other words, treating the admission of the statements as something other than plain error, as we did in our previous opinion,2 makes no demonstrable difference insofar as the outcome of the case is concerned.

Second, the interests of the people of the state of Michigan3 are impaired by limiting, through a legal fiction, the consideration of evidence that the prosecution might have been able to "properly" introduce by other means had it been placed on notice to consider doing so with a contemporaneously-raised objection.4 In this regard, like the prosecutor (as well as the defense counsel and the circuit judge) so eloquently defended by Justice BLACK in his concurring opinion in People v. Shirk, 383 Mich. 180, 198-200, 174 N.W.2d 772 (1970), the prosecutor in the instant case was a vigorous advocate, within the rules as they then existed, in seeking and obtaining defendant's conviction of second degree murder. In my judgment, it would not accord with due process, on the facts of this particular case, to retroactively apply a Confrontation Clause analysis to the laboratory evidence as though proper, contemporaneous objections had been made.

I join the majority in affirming, but I would leave to another day the question regarding under what circumstances fundamental fairness requires the retroactive application of Melendez-Diaz v. Massachusetts. I respectfully submit that this is not that case.