Opinion
No. 25520-4-III.
July 3, 2008.
Appeal from a judgment of the Superior Court for Adams County, No. 05-1-00050-3, Richard W. Miller, J., entered August 14, 2006.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Kulik and Korsmo, JJ.
Donna L. Christy appeals her conviction for manufacture of marijuana. She contends that evidence contained in a State lab report was improperly admitted under CrR 6.13 and violated her right to confrontation under Crawford. We conclude that even if the trial court erred in admitting the evidence, any error is harmless.
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
FACTS
On April 11, 2005, a search warrant was executed to collect evidence of marijuana growing at Ms. Christy's Ritzville, Washington home. Police seized plants, plant material, and drug paraphernalia. Ms. Christy was charged with manufacturing marijuana.
At trial, the State offered as evidence a "report of finding on evidence" by the Adams County Sheriff's Office. Report of Proceedings at 40. The report stated the substance in question was marijuana. Ms. Christy objected to admission of the report based on her confrontational rights, hearsay, and CrR 6.13. The trial court overruled the objection and admitted the report.
The jury convicted Ms. Christy of the charge. Ms. Christy appeals.
DISCUSSION A. CrR 6.13
Because the trial court has wide latitude in its decision to admit evidence, we review that decision for abuse of discretion. State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). A trial court abuses its discretion if its decision is manifestly unreasonable or based upon untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). The application of a court rule to the facts in a case is a question of law subject to de novo review. State v. Neal, 144 Wn.2d 600, 607, 30 P.3d 1255 (2001).
The criminal rules contain notice and procedural requirements that allow the admission of lab reports without live testimony from the maker. CrR 6.13(b)(1) provides:
Subject to subsection (b)(3) of this rule, the official written report of an expert witness which contains the results of any test of a substance or object which are relevant to an issue in a trial shall be admitted in evidence without further proof or foundation as prima facie evidence of the facts stated in the report if the report bears or has attached a certification stating that the certifier has performed a test on the substance or object in question, the name of the person from whom the substance or object was received, the certificate is attached to a true and complete copy of the certifier's official report, the report was made by the certifier, and the qualifications of the certifier to make such tests. The certificate shall be signed by the certifier with the title of his office and his business address and telephone number.
These requirements are strictly enforced, and even minor deviations may preclude the State's use of the report as evidence. Neal, 144 Wn.2d at 609-10. For instance, in Neal the court ruled that a lab report was inadmissible under CrR 6.13 because it did not specify the name of the person who delivered a substance to a laboratory for analysis, as required by the rule. Id. at 610.
Here, Ms. Christy's objection to the report was overruled without discussion. The lab report itself is not a part of the record. It is therefore unclear whether the report complies with CrR 6.13. The Neal court stated: "In the face of a validly stated objection that the certificate is defective, the report is hearsay evidence and further proof or foundation in the form of witnesses is required." Id. at 609-10. We are unable to determine whether Ms. Christy's objection is validly stated.
We are not required to order supplementation of an incomplete record, and we may decline to consider an alleged error if the appellant does not provide a complete record on a material issue. State v. Wade, 138 Wn.2d 460, 465-66, 979 P.2d 850 (1999); see RAP 9.10. We decline to reach the issue here. Further, as discussed in the next section, we would find the error harmless.
B. Crawford Confrontation Clause Claim
The Sixth Amendment states that a criminal defendant has the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. This guarantee applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Review of an alleged violation of the confrontation clause is de novo. State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007) (citing Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999)).
The essence of the Sixth Amendment right to confrontation is the right to meaningful cross-examination of one's accusers. Crawford, 541 U.S. at 50, 59. Crawford restricts the use of testimonial hearsay because there is no opportunity to cross-examine. Id. at 68-69. The determination of which statements are testimonial places emphasis on the intent and expectations of the out-of-court declarant. Id. at 51. In Crawford, "the 'core' class of 'testimonial' statements included those 'pretrial statements that declarants would reasonably expect to be used prosecutorially.'" State v. Mason, 160 Wn.2d 910, 918, 162 P.3d 396 (2007) (quoting Crawford, 541 U.S. at 51), cert. denied, 76 U.S.L.W. 3608 (U.S. May 12, 2008) (No. 07-9506). Thus, a statement is considered testimonial if it is made for the purpose of reporting a crime or to assist in apprehension and prosecution of a suspect. State v. Powers, 124 Wn. App. 92, 98, 99 P.3d 1262 (2004).
The Washington Supreme Court has held that CrR 6.13 does not violate a defendant's constitutional right to confront witnesses so long as all of its substantive requirements are strictly complied with. Neal, 144 Wn.2d at 607-08. But Neal was a pre — Crawford case, decided by the "adequate indicia of reliability" test from Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) that was overruled in Crawford, 541 U.S. at 62-63. Neal, 144 Wn.2d at 608. The same is true of State v. Sosa, 59 Wn. App. 678, 683-85, 800 P.2d 839 (1990), relied on by the State. CrR 6.13 has not been tested by Crawford standards.
Washington courts have examined, however, department of licensing records under the Crawford standard. State v. N.M.K., 129 Wn. App. 155, 163, 118 P.3d 368 (2005), aff'd, 160 Wn.2d 873, 161 P.3d 990 (2007); State v. Kronich, 131 Wn. App. 537, 545-47, 128 P.3d 119 (2006), aff'd, 160 Wn.2d 893, 161 P.3d 982 (2007). The Washington Supreme Court held that department of licensing reports are not testimonial under Crawford. It reasoned that a certification of the absence of a driver's license is not functionally different from a certification of the existence of a license and the admissibility of such documents under the confrontation clause should not "turn on the content thereof when that content includes only verifiable facts, adduced by a government official in the regular course of his or her duties according to a standardized procedure." Kirkpatrick, 160 Wn.2d at 887; see also Kronich, 160 Wn.2d at 903. The same cannot necessarily be said about lab reports.
Our courts have not decided whether lab reports are testimonial. See Kirkpatrick, 160 Wn.2d at 883 n. 13 (listing cases where other courts have held lab reports to be testimonial: Shiver v. State, 900 So. 2d 615, 618 (Fla.Dist.Ct.App. 2005) (portions of affidavit of breath test testimonial); City of Las Vegas v. Walsh, 121 Nev. 899, 124 P.3d 203, 207-08 (2005) (affidavits of nurses on blood draws testimonial), cert. denied, 547 U.S. 1071 (2006); People v. Pacer, 6 N.Y.3d 504, 847 N.E.2d 1149, 1153-54, 814 N.Y.S.2d 575 (2006) (affidavit of regularity/proof of mailing of notice of suspension of driving privileges testimonial); State v. Smith, 2006-Ohio-1661, 2006 Ohio App. LEXIS 1555, at *7 (unpublished opinion) (laboratory report submitted to establish identity and weight of substance in drug prosecution testimonial)).
The Crawford standard may require more than the procedures set forth in CrR 6.13. See, e.g., Wigglesworth v. Oregon, 49 F.3d 578, 581 (9th Cir. 1995) (stating that to satisfy confrontation rights, a statute must require the state to subpoena the technician; allowing the defense to do this puts the defendant in a "'Catch-22' situation [in which the choice is to] call the criminalist who prepared the report during the defendant's own case, and possibly bolster the [state's] case, or forego [sic] examination of the criminalist and perhaps lose an opportunity to expose a defect"). But see State v. Cunningham, 04-2200 (La. 6/13/2005); 903 So. 2d 1110, 1121-22 (approving lab report proving that substance was marijuana, where statute entitled defense to request subpoena of technician, which complied with Crawford).
The United States Supreme Court is poised to settle the issue. On March 17, 2008, it granted certiorari in a Massachusetts case to decide whether forensic laboratory reports are testimonial under Crawford. Melendez Diaz v. Massachusetts, ___ U.S. ___, 128 S. Ct. 1647, 170 L. Ed. 2d 352 (2008) (granting certiorari).
In Melendez-Diaz, the Massachusetts Court of Appeals, in an unpublished opinion, approved evidence in the form of drug analysis certificates indicating that a substance found in the possession of the defendant was cocaine. Commonwealth v. Melendez-Diaz, 69 Mass. App. Ct. 1114, 870 N.E.2d 676, 2007 WL 2189152, at *4 n. 3 (2007) (approving drug analysis certificates and rejecting claim that they were "subject to the holding" in Crawford), cert. granted, ___ U.S. ___, 128 S. Ct. 1647, 170 L. Ed. 2d 352 (2008).
The Massachusetts court relied on an earlier opinion by the Massachusetts Supreme Court that held a drug analysis is not testimonial for the purposes of the standard in Crawford. See Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 706 (2005) (approving certificate prepared by University of Massachusetts Medical School reporting that substance seized from defendant was cocaine; public records are admissible despite objection under confrontation clause; such material has "little kinship to the type of hearsay the confrontation clause intended to exclude," and Crawford made exception for business and public records). Similar to CrR 6.13, Massachusetts has a statute that allows a certified lab report to substitute for live testimony, albeit not a notice-and-demand statute.
Massachusetts General Laws, chapter 111, section 13 (1992) allows state prosecutors to introduce state forensic analysts' certifications as substitutes for live testimony at trial. Thus, prosecutors need not call the forensic analysts who prepared the reports. This Massachusetts statute was intended "to simplify proof of chemical analyses performed routinely and accurately by a public agency and 'to reduce court delays and the inconvenience of having busy public servants called as witnesses'" in every case where drug analysis evidence is presented. Commonwealth v. Johnson, 32 Mass. App. Ct. 355, 589 N.E.2d 328 (1992) (quoting Commonwealth v. Claudio, 26 Mass. App. Ct. 218, 220 n. 1, 525 N.E.2d 449 (1988), aff'd, 405 Mass. 481, 541 N.E.2d 993 (1989)). When its requirements are met, the certificate is admissible only as prima facie evidence that carries no particular presumption of validity, and the defendant may rebut if he doubts the certificate's correctness.
Cases in other jurisdictions are divided on the application of Crawford to forensic lab reports in the face of a notice-and-demand statute.
In 2006, the Minnesota Supreme Court held that its notice-and-demand statute, which is similar to Washington's CrR 6.13, was unconstitutional. State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). In determining whether the report was testimonial according to Crawford, the court found the report bore characteristics of the three general descriptions offered in Crawford:
The report functioned as the equivalent of testimony on the identification of the substance seized from [the defendant]. The report was prepared at the request of the Rochester police for the prosecution of [the defendant], and was offered at trial specifically to prove an element of the crimes with which he was charged.
Id. at 309.
The state's argument that the lab analysts were removed from the prosecutorial process and only played a nonadversarial role was rejected. Id. The court reasoned that "'[t]he Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by "neutral" government officers.'" Id. (quoting Crawford, 541 U.S. at 66). The court was also not persuaded by the line of cases that held these types of lab reports as nontestimonial because it found them to be focused on the reliability of the reports. Id. at 309-10.
As for the notice-and-demand provisions, permitting evidence to be introduced "without any further ado," the court again relied on Crawford, reading it to "remove[] the flexibility courts had to balance the state's interests, however legitimate, against the need for prior cross-examination and unavailability of the witness before testimonial evidence can be admitted." Id. at 310, 312 ( comparing Maryland v. Craig, 497 U.S. 836, 849, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S. Ct. 337, 39 L. Ed. 409 (1895)) with Crawford, 541 U.S. at 61). The court concluded:
[A]lthough there may be legitimate public policy reasons to advance the time to assert confrontation rights to a reasonable time before trial, such a shift cannot be constitutionally accomplished without adequate notice to the defendant that his failure to request the testimony of the analyst will result in the waiver of his confrontation rights, especially when the report is offered to prove an element of the offense with which the defendant is charged.
Id. at 313.
The statute was deemed unconstitutional because it did not require adequate notice be given to a defendant of the report's contents and of the consequences if he or she failed to request the analyst's presence. Id. In other words, there was "no reasonable basis to conclude that the defendant's failure to request the testimony constituted a knowing, intelligent, and voluntary waiver of his confrontation rights." Id. A similar result was reached by a Kansas court. See State v. Laturner, 38 Kan. App. 2d 193, 163 P.3d 367, 377 (2007) (holding part of the state's notice-and-demand statute unconstitutional to the extent it offends a criminal defendant's confrontation right), review granted, No. 06-96086-AS, 2007 Kan. LEXIS 832.
Thus, Washington's 15 days' notice in CrR 6.13(b)(3) may be adequate notice time-wise, but the rule may lack warnings waiver-wise.
The relevant provision of CrR 6.13(b)(3) provides: "The court shall exclude such report if:
"(i) a copy of the report and certificate has not been served on the defendant or the defendant's attorney at least 15 days prior to the trial date or, upon a showing of cause, such lesser time as the court deems proper; or
"(ii) in the case of an unrepresented defendant, a copy of this rule in addition to a copy of the report and certificate has not been served on the defendant at least 15 days prior to the trial date or, upon a showing of cause, such lesser time as the court deems proper; or
"(iii) at least 7 days prior to the trial date or, upon a showing of cause, such lesser time as the court deems proper, the defendant has served a written demand upon the prosecutor to produce the expert witness at the trial."
A different result was reached when a similar notice-and-demand statute was examined by the North Dakota Supreme Court in State v. Campbell, 2006 ND 168, 719 N.W.2d 374. Although the court did not decide whether the report was testimonial or nontestimonial, it did admit that the report bore "testimony in the sense that it [was] a 'solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Campbell, 719 N.W.2d at 376 (quoting Crawford, 541 U.S. at 51). The court nonetheless stated that, even assuming the report was testimonial, there could be no Sixth Amendment violation when a defendant fails to avail himself of the opportunity to confront the witness by not issuing a subpoena prior to trial. Id. at 377-78. A defendant therefore waived his right to confrontation when he failed to subpoena the analyst and, furthermore, by allowing the defendant to subpoena the analyst, the statute provided procedural safeguards that protected this right. Id. at 378.
It is not necessary to stay this case pending a decision in Melendez-Diaz, however, because even if Ms. Christy's Sixth Amendment rights were violated, any error was harmless under the facts here.
Confrontational clause errors are subject to a harmless error analysis. State v. Shafer, 156 Wn.2d 381, 395, 128 P.3d 87, cert. denied, ___ U.S. ___, 127 S. Ct. 553, 166 L. Ed. 2d 409 (2006). "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). Constitutional error is presumed to be prejudicial and the State bears the burden of proving that the error was harmless. State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980); Guloy, 104 Wn.2d at 425.
The State correctly points out that the jury in this case heard evidence that Ms. Christy admitted to two officers, each on a separate occasion, that she was growing marijuana. One of the officers was trained in drug detection and participated in the execution of the search warrant. He saw what he identified as marijuana. Further, the jurors personally saw the marijuana as well as photographs of it. We are convinced beyond a reasonable doubt that the same verdict would have been reached even without admission of the lab report evidence.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Kulik, J.
Korsmo, J.