Opinion
No. 27102
June 30, 2006
Appeal from the Circuit Court of Butler County, Honorable Mark L. Richardson, Judge.
Amy M. Bartholow, Attorney for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General and Lisa M. Kennedy, Assistant Attorney General, Attorneys for Respondent.
Robert D. March ("Defendant") appeals his conviction of the class B felony of trafficking in the second degree, a violation of Section 195.223. He contends that the trial court erred in overruling his objection to the admission of a laboratory report, and in denying his motion for a mistrial after a witness stated that Defendant was a "woman beater."
All statutory references are to RSMo (2000) unless otherwise indicated.
Defendant does not challenge the sufficiency of the evidence, therefore, viewed in the light most favorable to the verdict, the evidence produced at trial reveals:
On September 5, 2002, Poplar Bluff Police Officer Jason R. Morgan ("Officer Morgan"), while conducting a narcotics investigation, was observing a house where Defendant and Keva Davis ("Davis") were living. After noticing several vehicles stopping at the house, people going inside for a short period of time and then leaving, Officer Morgan came to the conclusion that drug transactions were taking place inside the residence. Officer Morgan obtained and served a search warrant at the residence. Upon entering, he and other police officers went directly to the master bedroom where Defendant and Davis were sleeping. The officers told them to put their hands above the covers, at which time Officer Morgan observed "some movement underneath the covers between the two." The couple was ordered to step out of the bed and while Davis was complying, one of the officers noticed a small object fall from her waist area onto the floor.
As the officers were moving Davis to the living room, they noticed that she had her toes clinched and was walking with an unusual gait. They found a clear plastic bag containing several rocks in her clinched toes. Upon closer inspection the officers found fourteen wrapped rocks and one unwrapped rock in the plastic bag, which Officer Morgan believed to be cocaine. He estimated that each rock would sell for approximately $20 and that in total the plastic bag contained $540 worth of cocaine. Based upon his training and experience he also concluded that this was an unusually large quantity of cocaine for someone to possess for his own personal use.
During the search of the master bedroom, the officers found $1,415 in the pocket of a pair of blue jeans that was located on Defendant's side of the bed. A search of the kitchen uncovered electric digital scales, sandwich baggies, a wood cutting board, and a razor utility knife that the officers believed to be drug paraphernalia.
Defendant was arrested and charged in an amended information, as a prior offender, with the class B felony of trafficking in the second degree. The case was tried to a jury which found Defendant guilty. Defendant's motion for acquittal, or in the alternative, for a new trial was denied and he was sentenced as a prior offender to a term of fifteen years in the department of corrections. Defendant now appeals.
In the first of two points on this appeal, Defendant argues that the trial court erred by admitting a laboratory report in violation of his right to confront his accusers under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 18(a) of the Missouri Constitution. We disagree.
At trial the State sought to admit a crime laboratory report which documented the results of the forensic analysis Dr. Robert C. Briner ("Dr. Briner") conducted on the substance the officers found Davis hiding under her foot. In the report, Dr. Briner concluded that the rocks found were crack cocaine. The State called the custodian of the lab's records, Pam Johnson, (at the time Dr. Briner was working and living out of state) to lay a foundation for the report to be admitted under Section 490.680 (commonly referred to as the business record exception). Defendant objected arguing, inter alia, that admitting the record without Dr. Briner's testimony violated the Confrontation Clause. The trial court overruled Defendant's objection and admitted the report.
The Confrontation Clause objection is the only issue raised by Defendant in Point I.
Defendant relies on Crawford v. Washington , 541 U.S. 36, 42; 124 S. Ct. 1354, 1359, 158 L.Ed.2d 177, 187 (2004), for the proposition that his inability to cross-examine the person that conducted the test and authored the report rendered the report inadmissible under the Confrontation Clause. As will be seen below, the situation in this case is distinct from Crawford. To begin, however, we are reminded that the text of the Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him. . . ."
In Crawford , the Supreme Court held that this right prevented the state of Washington from using out-of-court statements by the defendant's unavailable wife against him when he was unable to cross-examine her. 541 U.S. at 68. Defendant would have us hold that this case, in which the State introduced a document containing the results of a laboratory test under the business records exception without Dr. Briner's testimony, presents an analogous situation. Defendant argues that the report is an out-of-court statement by Dr. Briner, which cannot be admitted under Crawford's construction of the Sixth Amendment because he has had no opportunity to cross-examine Dr. Briner.
Crawford changed the nature of the analysis courts must engage in when determining whether hearsay evidence, though admissible under an exception thereto, nevertheless violates the Sixth Amendment's Confrontation Clause. Before Crawford , courts asked two questions prior to admitting an out-of-court statement over a Confrontation Clause objection; (1) is the witness unavailable to testify and (2) does the statement have adequate indicia of reliability? Crawford , 541 U.S. at 42; see also Ohio v. Roberts , 448 U.S. 56, 65-66; 100 S. Ct. 2531, 2538-39, 65 L.Ed.2d 597, 607-08 (1980), overruled in part by Crawford , 541 U.S. at 68. In order to meet the second prong of this test the statement had to fall within a "firmly rooted hearsay exception" or exhibit "particularized guarantees of trustworthiness." Crawford , 541 U.S. at 40 (quoting Roberts , 448 U.S. at 66).
Crawford recognized that this test did not always do justice to the original intent of the Confrontation Clause. Id. at 60. The Court expressly rejected the notion that exceptions to hearsay in criminal trials also alleviate Confrontation Clause concerns:
[W]e once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being."
Crawford , 541 U.S. at 50-51 (internal citations omitted); see also Dutton v. Evans , 400 U.S. 74, 94; 91 S. Ct. 210, 222, 27 L.Ed.2d 213, 230 (1970). After surveying the history of the Confrontation Clause, the Court found that the Framers were primarily concerned with avoiding the admission of out-of-court statements that resemble ex parte testimony, or put another way "testimonial" statements against the defendant. Crawford , 541 U.S. at 51-53. Prior to the Sixth Amendment's adoption, these types of statements could only be admitted when the witness was unavailable and the defendant had a prior opportunity to cross-examine. Id. at 54. The shortfall of the Roberts test described above is that it predicates the admission of "testimonial" statements on a judicial determination of their reliability. See Id. at 61-62. In essence, Roberts created a new "wholly foreign" exception to the Confrontation Clause. See Id. Specifically the Court stated:
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability.". . . Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.
Crawford , 541 U.S. at 61.
A judge's determination that a "testimonial" out-of-court statement is reliable does not assuage the constitutional violation that occurs when such a statement is admitted against a defendant who has no opportunity to test its veracity through cross-examination. See Id. at 61-62. As the Court noted, reliability may be the ultimate goal of the Sixth Amendment, however, the Confrontation Clause provides a specific method by which that reliability is to be determined, and that is by allowing the accused to cross-examine those uttering evidence against him. Id. Therefore, the Court held that "testimonial" hearsay could not be admitted against a defendant unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine him. Id. at 68.
The question now before us is whether the laboratory report in this case constitutes "testimonial" hearsay and, thus, is inadmissible under Crawford. In Crawford , the Court declined to conclusively define what constitutes testimonial hearsay, but stated:
Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
541 U.S. at 68. Although appearing as dictum in its historical discussion, the Court suggested that most hearsay exceptions are not "testimonial" in nature:
The Court did discuss some formulations of what has been considered "testimonial":
[The Confrontation Clause] applies to "witnesses" against the accused-in other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a causal remark to an acquaintance does not. The constitutional text, like the history underlying common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
Various formulations of this core class of "testimonial" statements exist: " 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," "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Crawford , 541 U.S. at 51-52 (internal citations omitted).
[T]here is scant evidence that [hearsay] exceptions were invoked to admit testimonial statements against the accused in a criminal case. Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements made in furtherance of a conspiracy.
Id. at 56 (internal citations omitted).
The State points to this last statement and argues that it, in conjunction with Supreme Court of Missouri precedents, controls our decision here because the laboratory report at issue in this case was admitted as a business record. While not under the aegis of "testimonial" or "non-testimonial," Missouri courts have consistently held that business records admitted as exceptions to hearsay pose no threat to the Confrontation Clause. State v. Taylor , 486 S.W.2d 239, 242 (Mo. 1972) (lab report admitted as a business record also defeated Confrontation Clause objection); Allen v. St. Louis Pub. Serv. Co. , 285 S.W.2d 663, 666 (Mo. 1956) (hospital record admitted as business record and thus no violation of Confrontation Clause); Thebeau v. Dir. of Revenue , 945 S.W.2d 674, 675-676 (Mo.App.E.D. 1997) (arresting officer's report admitted, via officer's affidavit, as business record and therefore, not in violation of Confrontation Clause); State v. Hall , 750 S.W.2d. 637, 638-39 (Mo.App.E.D. 1988) (lab report showing a controlled substance admitted as a business record and, thus, no Confrontation Clause violation).
Defendant argues that these cases have been implicitly overruled by Crawford because this laboratory report is "testimonial." We disagree. As noted above, the Supreme Court did not expressly offer a definition of what constitutes "testimonial" hearsay outside of its application to those facts (the out-of-court statement of defendant's wife to police officers). See Id. at 68. Furthermore, those Missouri cases cited above do not speak in terms of "testimonial" or "non-testimonial" hearsay. Rather, those cases simply held that properly admitted business records do not offend the Confrontation Clause. We also note that Crawford expressly stated that the Roberts ' test, allowing hearsay exceptions to defeat both hearsay and confrontation clause objections, is still applicable to "non-testimonial" hearsay. Id.
Our research reveals that courts in other jurisdictions are split as to whether a lab report such as the one at issue here is "testimonial." See Belvin v. State , 922 So.2d 1046, 1054 (Fl.Ct.App. 2006) (breath test affidavit attesting to technician's procedures and observations was testimonial and inadmissible under Crawford ) appeal docketed, No. SC06-593, (Fla. April 28, 2006); Shiver v. State , 900 So.2d 615, 618 (Fla.Ct.App. 2005) (affidavit attesting to proper maintenance on breath test machine was testimonial); State v. Crager , 844 N.E.2d 390, 397 (Ohio App. 2005) (DNA report was testimonial); People v. Hernandez , 794 N.Y.S.2d 788, 789 (N.Y. 2005) (a fingerprint report prepared by police officer was testimonial); People v. Lonsby , 707 N.W.2d 610, 620-21 (Mich.App. 2005) (information from lab report intimating that substance on Defendant's shorts was semen was testimonial and inadmissible under Crawford ); City of Las Vegas v. Walsh , 124 P.3d 203, 207-08 (Nev. 2005) (affidavit attesting that proper method of blood testing was followed was testimonial as it was prepared for litigation); Commonwealth v. Carter , 861 A.2d 957, 969-70 (Penn. 2004) (without benefit of Crawford , court held that a lab report verifying the presence of cocaine in items seized from defendant was prepared in preparation for litigation and therefore lacked indicia of reliability traditionally found in business records); People v. Rogers , 780 N.Y.S.2d 393, 397 (N.Y.App.Div. 2004) (report verifying presence of alcohol in victim's blood was prepared for prosecution and thus testimonial); Smith v. State , 898 So.2d 907, 916 (Ala.Crim.App. 2004) (autopsy report should have been excluded under 6th Amendment, but error was harmless); but see People v. Durio , 794 N.Y.S.2d 863, 868-69 (N.Y. 2005) (autopsy report not prepared for benefit of prosecution and was not testimonial); Denoso v. State , 156 S.W.3d 166, 182 (Tex.App. 2005) (autopsy report not considered testimonial); Commonwealth v. Verde , 827 N.E.2d 701, 705 (Mass. 2005) (certificates of analysis showing weight of cocaine not considered testimonial statements, as public records they constituted a recognized exception to Confrontation Clause); People v. Hinojos-Mendoza , No. 03CA0645, 2005 Col. App. LEXIS 1206 *8 (July 28, 2005) (report confirming that substance seized from defendant was cocaine was non-testimonial and admissible under Crawford ); State v. Dedman , 102 P.3d 628, 636 (N.M. 2004) (the unavailability of a nurse that drew blood from defendant did not render report documenting results as inadmissible because it was considered non-testimonial as the testing was not done by law enforcement personnel, the report was not testimony for trial or investigative or prosecutorial); Perkins v. State , 897 So.2d 457, 464 (Ala.Crim.App. 2004) (autopsy report qualifying as a business record was non-testimonial under Crawford ).
Therefore, in a case such as this, in which the Supreme Court has expressly refused to define what constitutes "testimonial," we must recognize the above line of Missouri cases as controlling. We are constitutionally bound to follow the latest decision of the Supreme Court of Missouri. Mo. Const. art. V, § 2. It is for our Supreme Court to determine whether Taylor (holding that a lab report admitted as a business record did not offend the Confrontation Clause) and its progeny are consistent with the reasoning of Crawford. Defendant's Point I is therefore denied.
In Point II, Defendant argues that the trial court abused its discretion in not granting a mistrial after Davis, during her testimony, stated that Defendant was a "woman beater." The bulk of Defendant's point is a discussion of why this statement by Davis was inadmissible. However, the trial court agreed, sustained his objection and admonished the jury to disregard Davis' answer. Therefore, the sole question before us is whether the court erred in denying Defendant's motion for a mistrial after determining that its admonition cured any prejudice against Defendant.
A trial court is in the best position to analyze the prejudicial impact of inadmissible testimony heard by the jury. State v. Smith , 32 S.W.3d 532, 552 (Mo. banc 2000). Granting a mistrial is a drastic remedy and should only be exercised when the prejudice to the defendant cannot be removed in any other way. State v. Williams , 922 S.W.2d 845, 851 (Mo.App.E.D. 1996), cert. denied, Williams v. Missouri , 519 U.S. 974 (1996). Trial courts enjoy a great amount of discretion in making that determination. Hahn v. State , 37 S.W.3d 344, 354 (Mo.App. W.D. 2000). An abuse of discretion is only said to occur when the decision is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and to indicate a lack of careful consideration. State v. Carter , 71 S.W.3d 267, 271 (Mo.App.S.D. 2002). We also presume that the jury followed the court's instructions and admonitions. Id. Furthermore, we will only reverse if it is shown that there is a reasonable probability that in the absence of the inadmissible statement, the verdict would have been different. Smith , 32 S.W.3d at 552.
In this case, after a lengthy discussion at the bench, the court allowed the prosecutor to explore, in a limited manner, whether Davis had been threatened or intimidated into not coming forward and informing police that the cocaine recovered at the residence was Defendant's. Apparently, during a deposition Davis made it clear that during their relationship, and prior to his arrest, Defendant had struck her and that she feared for her safety. Defendant was understandably leery of allowing the prosecutor to go down this road and risk Defendant's prior bad acts coming before the jury. The following colloquy between the prosecutor and Davis ensued:
Q. And for the love of it you can't figure out why you didn't say anything and why you covered up those drugs that night?
A. I know why I didn't say anything.
Q. Why?
A. [Defendant] is a woman beater —
Defendant's immediate objection was sustained and the court instructed the jury to disregard Davis' statement.
A trial court is within its discretion when it cures an "error in the admission of evidence by withdrawing the improper evidence and instructing the jury to disregard it, rather than declaring a mistrial." State v. McCrary , 900 S.W.2d 227, 233 (Mo.App.W.D. 1995) overruled on other grounds by State v. Withrow , 8 S.W.3d 75, 79 (Mo. banc 1999). In this context, when evidence supporting Defendant's guilt is strong, "it is less likely that the trial court will be found to have abused its discretion." State v. Harris , 949 S.W.2d 102, 105 (Mo.App.W.D. 1997); see also State v. Walls , 911 S.W.2d 645, 647 (Mo.App.S.D. 1995).
It is for the trial court to determine what measures are to be employed in order to cure any prejudice to a defendant resulting from inadmissible testimony which has been inadvertently extracted from a witness. Harris , 949 S.W.2d at 105. The ordinary measure used is for the trial court to strike the improper testimony and instruct the jury to disregard. Id. "If the trial court takes remedial action, rather than granting a mistrial, a reviewing court must simply determine whether the error was so prejudicial that the action of the trial court did not remove the prejudicial effect, as a matter of law." Id.
In this case there was strong circumstantial evidence of Defendant's guilt. Officer Morgan testified that he observed multiple people coming and going from the residence on the day of Defendant's arrest, which he believed indicated that drug transactions were occurring inside. Furthermore, scales, a cutting board, a razor utility knife, $1415 in cash, and an unusually large amount of cocaine were seized from the residence. Based upon this record we cannot say that without Davis' inadmissible statement the jury's verdict would have been different. Accordingly, Point II is denied.
The judgment is affirmed.
Bates, C.J., and Shrum, P.J., — concur.