Opinion
NO. 2013 KJ 0631
2013-09-13
STATE OF LOUISIANA IN THE INTEREST OF T.S.
Hillar C. Moore, III, District Attorney and Stacy Wright, Assistant District Attorney Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana Jack Harrison, Assistant Public Defender Baton Rouge, Louisiana Attorney for Defendant/Appellant, T.S.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Juvenile Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 103,607
The Honorable Pamela Taylor-Johnson, Judge Presiding
Hillar C. Moore, III,
District Attorney
and
Stacy Wright,
Assistant District Attorney
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellee,
State of Louisiana
Jack Harrison,
Assistant Public Defender
Baton Rouge, Louisiana
Attorney for Defendant/Appellant, T.S.
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
CRAIN, J.
T.S., a fifteen-year-old, was adjudicated delinquent and in need of supervision for illegally carrying a weapon while in possession of a controlled dangerous substance (marijuana), a violation of Louisiana Revised Statute 14:95E and for possessing a Schedule I controlled dangerous substance (marijuana), a violation of Louisiana Revised Statute 40:966E(1). In a subsequent proceeding, the Section 40:966E(1) adjudication was vacated. After a disposition hearing relative to the Section 14:95E adjudication, the juvenile was committed to the Department of Public Safety and Corrections for a term of twenty-four months. He now appeals, alleging the juvenile court erred in denying his motions to suppress statements and physical evidence and that he was denied his Sixth Amendment right to confront his accuser. We reverse and remand.
FACTS
On December 27, 2012, based on an anonymous complaint of a black male wearing a white hoodie sweatshirt and blue warm-up pants walking in the roadway with a gun, Baton Rouge Police Officer James Crisler was dispatched to the area of 2835 Erie Street in Baton Rouge. Upon arriving in the area, Officer Crisler patrolled in search of the described individual and observed a subject fitting the description.
Officer Crisler maneuvered his vehicle behind the suspect, who was walking in the middle of the roadway. Upon seeing the marked police unit, the suspect fled. While the suspect fled, Officer Crisler observed him with one arm in a "natural running motion," and the other in "a very unnatural position," appearing to be holding something against his body near his waist. After a brief pursuit, Officer Crisler apprehended the suspect, who was later identified as T.S., and informed him of his Miranda rights. He patted down the juvenile, but recovered no weapons or contraband.
Miranda v. Arizona, 86 S.Ct. 1602 (1966). The record reflects that the juvenile was informed of his Miranda rights several times, including once in the presence of his mother.
The juvenile stated he threw a weapon into the backyard of a nearby residence and a pistol was then found there. He also admitted using a belt to secure the firearm to his waist
At the police station, Officer Crisler conducted a search and recovered a small, clear baggy of "suspected marijuana" from the pocket of the juvenile's warm-up pants. The juvenile never admitted that the baggy contained marijuana.
CONFRONTATION CLAUSE
The juvenile argues that his constitutional rights were violated when a crime lab supervisor who neither conducted nor observed the lab tests was allowed to testify about the results.
The accused in a criminal proceeding has the right to confront the witnesses against him. U.S. Const. amend. VI. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 124 S.Ct. 1354, 1365 (2004), "Statements are nontestimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis v. Washington, 126 S.Ct. 2266, 2273 (2006). Statements "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." Davis, 126 S.Ct. at 2273-74.
In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Supreme Court held that the state may not, over a defendant's objection, introduce as substantive evidence "certificates of analysis" revealing the presence of contraband substances absent a showing that the preparing analyst was unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine him. The Court reasoned that the "certificates of analysis" were affidavits containing testimonial statements and that the analysts were "witnesses" for Sixth Amendment purposes. Melendez-Diaz, 129 S.Ct. at 2532.
In Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710 (2011), the Supreme Court held that a forensic laboratory report containing a testimonial certification could not be introduced at trial through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. The Court reasoned that when the state elected to introduce a particular scientist's certification, that scientist became a witness the defendant had the right to confront. Bullcoming, 131 S.Ct. at 2716.
Notice-and-demand statutes which require notice to the defense of the state's intent to use the certificate of analysis at trial, and demand by the defense for the testimony of the analyst at trial, do not violate the Confrontation Clause because they do not shift the burden of calling the testifying analyst to the defendant, rather, the burden of raising the Confrontation Clause objection is always with the defendant and a valid notice-and-demand statute simply regulates the time to do so, Melendez-Diaz, 129 S.Ct at 2541.
Louisiana's notice-and-demand statute is found in Revised Statutes 15:499-501. Thereunder, criminalistics laboratories are authorized to provide a certificate of the person making an examination or analysis as proof of the examination and analysis of physical evidence. See La. R.S. 15:499A. A party seeking to introduce such a certificate must provide written notice of his intent to offer such proof not less than forty-five days before trial. See La. R.S. 15:501A. By timely filing a written demand within thirty days of the notice of intent, the defendant may demand that the person who conducted the examination and analysis appear and testify. See La. R.S. 15:501B and C If the certificate and notice comply with Sections 499 and 501, and the defendant does not timely demand the testimony of the analyst, the certificate is admissible and is prima facie proof of the facts stated therein and of proper custody of the physical evidence listed therein from time of delivery of that evidence to the facility until its removal. See La. R.S. 15:500. If the defendant properly demands the testimony of the analyst who performed the tests, then the certificate is not prima facie evidence and the analyst must testify. See La. R.S. 15:501B. These notice-and-demand procedures are applicable to juvenile matters. See La. R.S. 15:500. Louisiana courts have upheld these statutes and their minor procedural amendments both prior to and following Melendez-Diaz. See State v. Simmons, 11-1280 (La. 1/20/12), 78 So. 3d 743, 747 (per curiam); State v. Cunningham, 04-2200 (La. 6/13/05), 903 So. 2d 1110, 1122; see also State v. Beauchamp, 10-0451 (La. App. 1 Cir. 9/10/10), 49 So. 3d 5, 9-10.
In this case, on January 22, 2013, the State filed a notice to introduce a certificate of analysis under Revised Statutes 15:499-501. Attached to the notice was the scientific analysis report by Bryan Guidry. The report indicated that Guidry's examination, completed on January 15, 2013, revealed one clear plastic bag containing green vegetable material identified as marijuana.
The adjudication hearing was held on January 24, 2013. Guidry did not testify. Rather, Rebecca Nugut, the supervisor of the drug chemistry section of the Louisiana State Police Crime Lab testified. She said she is Guidry's direct supervisor and his only duties involve marijuana analysis. Nugut admitted she did not personally conduct the scientific analysis and did not personally supervise Guidry's analysis.
Defense counsel objected to Nugut's testimony and to the introduction of the scientific analysis report, arguing that the juvenile's confrontation rights were violated by the State's failure to present testimony by Guidry. The State countered by arguing that the "accuser" was the State and the juvenile's confrontation rights were protected through the examination of Nugut. The juvenile court overruled the objections and allowed Nugut to testify and to identify the material in the plastic baggy as marijuana.
We find that the juvenile's Sixth Amendment confrontation right was violated. The scientific analysis report identifying the marijuana was a testimonial statement by Guidry intended to prove past events potentially relevant to the criminal prosecution. See Davis, 126 S.Ct. at 2273-74. The State failed to give at least forty-five days prior written notice of its intent to introduce the report, as required by Revised Statute 15:501 A.
While the juvenile did not make written demand for Guidry's testimony pursuant to Revised Statute 15:501B, that obligation only arises after the State provides the requisite forty-five day notice. We find that timely objection to both the introduction of the report and the supervisor's testimony was sufficient to preserve the issue of the juvenile's confrontation rights. We also recognize the apparent tension between the delays necessitated by providing the statutorily required notices and the policy of handling juvenile matters as expeditiously as possible. However, that tension does not excuse the State's failure to comply with the statute, particularly in light of the fact that the Legislature has expressly made the notice-and-demand statute applicable to juvenile proceedings. Also, while the State made a showing that Guidry was unavailable to testify, the juvenile had no opportunity to cross-examine Guidry prior to trial. See Melendez-Diaz, 129 S. Ct. at 2531-32; Crawford, 124 S. Ct. at 1365.
Consequently, we find that the juvenile court erred in allowing Nugut's testimony and the scientific analysis report into evidence. Because the State failed to comply with Louisiana's notice-and-demand statute, the scientific analysis report could not serve as prima facie evidence of the facts shown therein. Further, the juvenile had no meaningful opportunity to cross-examine Mr. Guidry prior to trial. Nugut's testimony was not sufficient to satisfy the juvenile's constitutional right to confront the analyst who performed the analysis.
We note that confrontation errors are subject to harmless error analysis. See Delaware v. Van Arsdall, 106 S. Ct. 1431, 1438 (1986); State v. Robinson, 010273 (La. 5/17/02), 817 So. 2d 1131, 1137. Here, the confrontation error was not harmless because the analyst's report was the only evidence to support the allegation that the juvenile possessed a controlled dangerous substance (marijuana) while in possession of a firearm, both essential elements of the charged crime. In the absence of this evidence, the adjudication for the delinquent act of illegally carrying a weapon while in possession of a controlled dangerous substance cannot stand.
Having found merit in this assignment of error, we pretermit discussion of the remaining assignments of error.
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ADJUDICATION REVERSED; DISPOSITION VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS.