by Douglas Ankney

The Supreme Judicial Court of Maine vacated Rochelle Gleason’s conviction for aggravated trafficking of a scheduled drug that caused the death of a person after applying the holding of Smith v. Arizona, 602 U.S. 779 (2024), in which the United States Supreme Court rejected the “not for the truth” rationale that previously permitted testimonial hearsay by forensic analysts who testified about forensic testing performed by other, non-testifying analysts without violating the Sixth Amendment’s Confrontation Clause.

Background

In October 2021, Gleason communicated with the decedent, using slang terms such as “fingy” and “fetty” to arrange the sale of fentanyl. On October 16, Gleason sent a voice message describing the drugs as “dark, dark shit” and “fire, harsher shit,” offering $40 worth of fentanyl mixed with kratom (mytragynine). The decedent drove with his 12-year-old daughter to Third Street in Bangor, where she remained in the car and observed him exchange money with Gleason. After returning home, the decedent consumed the purchased drugs and died shortly thereafter from acute intoxication caused by the combined effects of fentanyl and kratom.

The Maine Office of the Chief Medical Examiner (“MOCME”) sent a sample of the decedent’s blood to the NMS Forensic Toxicology Laboratory in Pennsylvania for analysis. Several lab employees conducted two initial screening tests to detect a wide range of compounds followed by two confirmatory tests, which were requested by the MOCME, specifically targeting the presence and quantity of fentanyl and kratom. Two separate lab employees verified the accuracy of the testing instruments, confirmed no anomalies, and ensured adherence to appropriate protocols. A lab employee then exported the data from the testing instruments to a computer for further analysis. 

At Gleason’s trial for aggravated trafficking of a scheduled drug that caused the death of a person (Class A), Chelsea Deisher, a forensic toxicologist at NMS Laboratory, testified about the toxicology report she prepared. The report, based on data and results from other lab employees, revealed that the decedent’s blood contained 26 nanograms per milliliter of fentanyl, 1.8 nanograms per milliliter of norfentanyl (a fentanyl metabolite), and 22 nanograms per milliliter of kratom. A deputy chief medical examiner corroborated Deisher’s findings, testifying that the fentanyl level was toxic and that the decedent’s death resulted from the combined effects of fentanyl and kratom. Gleason objected to Deisher’s testimony, arguing that it violated her

Sixth Amendment Confrontation Clause rights because Deisher did not personally conduct the tests and Gleason could not cross-examine the lab employees who performed the testing to verify proper test sequences and procedures.

In a hearing outside the jury’s presence, the trial judge overruled Gleason’s objection, reasoning that the test results and data were not hearsay because they were introduced not for their truth but to explain the basis for Deisher’s report and conclusions. The jury found Gleason guilty on May 3, 2024, after a five-day trial. On May 16, 2024, the court sentenced Gleason to 18 years’ imprisonment, with all but eight years suspended, and four years of probation. Gleason timely appealed the conviction.

Analysis

The Maine Supreme Judicial Court analyzed Gleason’s appeal under the Sixth Amendment’s Confrontation Clause, which guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him,” applicable to the states via the Fourteenth Amendment.” Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Court reviews de novo the admission of testimony implicating this constitutional right. State v. Judkins, 319 A.3d 443 (Me. 2024). The Confrontation Clause bars the admission of testimonial hearsay –out-of-court statements offered to prove their truth – unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36 (2004).

The Court’s hearsay analysis focused on Smith v. Arizona, 602 U.S. 779 (2024), which clarified that Confrontation Clause protections fully extend to forensic evidence. It noted that Smith established a pivotal rule: “If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts.” Smith. In Smith, a crime lab analyst tested substances, documenting in notes and a report that they contained usable quantities of methamphetamines, marijuana, and cannabis. At trial, a forensic scientist with no direct involvement testified to an “independent opinion” by reciting the analyst’s notes “item by item,” confirming the substances’ identity. The U.S. Supreme Court concluded that this was problematic because the testifying analyst’s opinion relied on the truth of the other, non-testifying analyst’s reported procedures and results, effectively making the testifying analyst a “mouthpiece” for the absent analyst’s work, thus offering the statements for their truth and implicating the Confrontation Clause. Id. 

The Court explained that Smith rejected the “not for the truth” rationale, previously used under evidence rules like Maine Rule of Evidence 703, which allowed experts to disclose underlying data to explain their opinions without triggering hearsay concerns. The Court noted that Maine precedent, such as State v. Mercier, 87 A.3d 700 (Me. 2014), permitted experts to testify about autopsy reports they did not author. However, Smith explicitly criticized Mercier as flawed, overturning this approach. The Court also discussed Williams v. Illinois, 567 U.S. 50 (2012), where a plurality upheld testimony about a DNA profile match because the profile was not admitted for its truth but to explain the expert’s opinion. Smith criticized Williams, noting the expert acted as a “conduit” for another’s statement about the profile’s source – the very situation Smith did away with by rejecting the “not for the truth” rationale.

Applying Smith, the Maine Supreme Court recently held in State v. Thomas, 334 A.3d 686 (Me. 2025), that an expert chemist’s testimony about fentanyl, based on a “technical review” and “independent review” of another chemist’s notes and data, constituted hearsay. The chemist retraced the other’s steps and compared data to a known fentanyl profile, relying on the truth of the notes and data about sample origin and testing protocols, acting as a “conduit” for the absent chemist’s statements.

Turning to the present case, the Court stated that the facts mirror Thomas. Forensic toxicologist Deisher conducted a technical review of data and notes from other NMS Laboratory employees who tested the decedent’s blood but did not perform or observe the tests herself. She assumed proper testing sequences and that the samples came from the victim, relying on the truth of others’ documentation to prepare her toxicology report. The State used Deisher as a “mouthpiece” to convey that other employees followed protocols, intending the jury to accept the lab results’ truth. See Smith. The trial court, citing Maine Rule of Evidence 703, admitted Deisher’s testimony, reasoning she was a live expert who critically assessed and explained organizational data, subject to cross-examination. The Court stated that this reflected the “not for the truth” rationale rejected by Smith. Because Deisher’s opinion depended on the lab data revealing fentanyl, the data and notes were offered for their truth, satisfying the hearsay prong, the Court concluded.

The Court next addressed the testimonial prong, noting that a statement is testimonial if its “primary purpose” is to “establish or prove some fact” for trial. Crawford; State v. Beeler, 281 A.3d 637 (Me. 2022). Determining this is fact-intensive, requiring consideration of all relevant circumstances. Smith; State v. Metzger, 999 A.2d 947 (Me. 2010). However, the Court stated that the trial court, relying on then-valid precedent like Mercier, did not analyze whether the lab employees’ statements were testimonial because the “not for the truth” rationale was dispositive at the time. As a court of review, not first view, In re Est. of Williams, 41 A.2d 825 (Me. 1945), the Court declined to make this fact-specific determination in the first instance as to whether the statements relied upon by Deisher in reaching her opinion were testimonial or not.

Conclusion

Accordingly, for fairness since the parties developed their records based on a standard that is no longer applicable, the Court vacated the judgment and remanded for a new trial to allow the trial court to assess whether the statements were testimonial. See: State v. Gleason, 339 A.3d 774 (Me. 2025).   

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