Opinion
No. 26711-3-III.
December 23, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 07-8-00145-8, Douglas Anderson, J. Pro Tem., entered November 28, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Sweeney, J.
Antonio V. Ramirez challenges the Grant County Juvenile Court's determination that he had possessed marijuana. He does not challenge the determination that he committed second degree malicious mischief. Accepting the State's concession that Mr. Ramirez did not waive his right to confront the marijuana technician, we reverse the conviction for marijuana possession and remand for a new trial. In all other respects, we affirm the trial court.
Only some limited facts related to the procedural aspects of the marijuana case are relevant to our decision. Mr. Ramirez was arrested for breaking two car windows and a plastic bag of suspected marijuana was found in his pocket. The arresting officer packaged the marijuana and gave it to another officer to deliver to a neighboring police department for testing. Both officers testified at trial. The drug technician provided a laboratory report that noted he had received the evidence from the transporting officer. The report had been provided only two days before the adjudicatory hearing began. Defense counsel objected to consideration of the report since it had not been provided in a timely manner. The hearing was recessed for seven weeks. Upon resumption of the hearing, the court commissioner denied the motion to exclude the lab report. After the commissioner determined that the charged offenses had been committed, Mr. Ramirez appealed to this court.
CrR 6.13, applicable to juvenile court proceedings by operation of JuCR 1.4(b), requires that a laboratory report be provided to defense counsel fifteen days before trial. CrR 6.13(b)(3)(i). Counsel then may request the presence of the laboratory technician by written demand seven days prior to trial. CrR 6.13(b)(3)(iii). Neither of these provisions was complied with in this case. In light of the failure of the report to be delivered in a timely manner, defense counsel understandably could not object seven days before the hearing. The prosecution concedes error on this point. We accept the concession, reverse the conviction for possession of marijuana, and remand for a new trial.
In light of this determination, there is no need to address the constitutionality of CrR 6.13, an issue that probably will be resolved when the United States Supreme Court releases its opinion in Melendez-Diaz v. Massachusetts, No. 07-591, argued November 10, 2008.
Mr. Ramirez also argues that the trial court erred in admitting the baggie of marijuana, contending that the chain of custody had not been satisfied. A trial court's decision to admit or exclude evidence is reviewed for abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the arresting officer identified the baggie of marijuana as the one he took from the defendant. That is sufficient to identify the exhibit at trial. As the Washington Supreme Court once stated:
An exhibit is admissible, so far as identity is concerned, when it has been identified as being the same object about which the testimony was given and when it is stated to be in the same condition as at the time of the occurrence in question. It is not necessary to negative the possibility of an opportunity for tampering with an exhibit, nor to trace its custody by placing each custodian upon the witness stand.
Allen v. Porter, 19 Wn.2d 503, 508, 143 P.2d 328 (1943). Accord, State v. Russell, 70 Wn.2d 552, 553, 424 P.2d 639 (1967).
The arresting officer's description of the exhibit as the item he took from the defendant was sufficient to identify the item. The trial court did not abuse its discretion by admitting the evidence.
The possession of marijuana conviction is reversed and remanded for a new trial. The conviction for second degree malicious mischief is affirmed.
A majority of the panel has determined 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.
Schultheis, C.J. and Sweeney, J., concur.