Opinion
No. 37438-2-II.
December 9, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 05-1-00641-1, Kenneth D. Williams, J., entered February 1, 2008.
Reversed by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
Patricia Sue Shultz appeals her conviction for possessing a controlled substance, methamphetamine, under RCW 69.50.4013(1). Shultz argues that the trial court violated her right to confrontation when it admitted a lab report into evidence without an opportunity for her to cross examine the author of the report. Agreeing with Shultz, the State concedes that the lab report was inadmissible under Crawford v. Washington. We accept the State's concession and reverse Shultz's conviction.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
FACTS
The Sequim Police Department arrested Patricia Shultz and sent a pipe seized from her pocket to the Washington State Patrol (WSP) laboratory to analyze the content of a white residue in the pipe. Raina Kittilstved, a lab technician with WSP, issued a lab report which concluded that the residue contained methamphetamine. Based on the test result, the State charged Shultz with possession of methamphetamine (Count I) under RCW 69.50.4013(1).
The State also charged Shultz with possession of marijuana (Count II) under RCW 69.50.4014. But that charge is not included in this appeal.
On November 17, 2006, a deputy prosecutor wrote a letter to Shultz informing her that Kittilstved no longer worked with WSP and asking whether Shultz would stipulate to the report's admissibility. Shultz did not respond to the letter in writing; nor did she make a written demand for the state to produce Kittilstved. According to Shultz, she informed the deputy prosecutor that she wanted Kittilstved available for cross examination at trial and she would not stipulate to the report's admissibility.
Meanwhile, the WSP attempted a second test on the pipe residue. But because the remaining material was insufficient for testing without using up all the material, the result proved inconclusive. The State provided Shultz with this inconclusive second lab report. The State filed a motion for consumption, asking the court to allow a third test that would consume the remaining residue from the pipe found on Shultz's person. The court granted this request. Nothing in the record before us shows whether the State performed this third test; and we have no third test lab results before us on appeal.
On the first day of trial, Shultz asserted that the first lab report was inadmissible without Kittilstved's testimony. Shultz asserted that (1) she had informed the previous deputy prosecutor that she would not stipulate to the report's admissibility and wanted Kittilstved available for cross examination at trial; (2) it was Shultz's request for the lab tester's live testimony that had caused the State to petition the trial court to allow the third lab "consumptive" lab test; (3) Shultz had been waiting for the results of this third lab test and the name of the new expert who conducted the test in order to make a demand for that new expert's live testimony; but (4) she had not received any third lab test results or the name of the new lab expert.
A different deputy prosecutor had represented the State at trial.
The new deputy prosecutor representing the State at trial explained that she had inherited the case late and candidly admitted, "I DON't know what was DONe or how things were handled before. . . . It may have been inferred by the parties that the defense would make such a demand, but there is no [written] demand present." Report of Proceedings (Jan. 7, 2008) at 21. Nevertheless, the State argued that Kittilstved's report was admissible under CrR 6.13(b) because (1) the State had provided Shultz with a copy of Kittilstved's, first lab test at least 15 days before trial; (2) the State had informed Shultz that Kittilstved had left the State's employ and would not be available; and (3) Shultz had never made a written request for Kittilstved's live testimony at trial. Ruling that Shultz had not made a written request for Kittilstved to appear in person, the trial court admitted the report under CrR 6.13(b).
CrR 6.13(b) provides:
(b) Test Report by Expert.
(1) Certification Required. 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.
. . . .
(3) Notice Requirements. 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
. . . .
(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.
(Emphasis added).
At trial, the State moved to admit the first lab report without testimony from Kittilstved. Citing Crawford, Shultz objected to admission of the report as violative of her right to confrontation. The trial court admitted the lab report, reasoning, in part, that no court had yet held CrR 6.13(b) unconstitutional under Crawford.
Before Crawford, the Washington Supreme Court held that lab reports admitted under CrR 6.13(b) did not violate the Confrontation Clause: "Admission of hearsay evidence implicates a defendant's constitutional right to confront the witness brought against him or her, but police crime laboratory reports can be admitted consistent with constitutional vales if certain procedures are employed." State v. Neal, 144 Wn.2d 600, 607-08, 30 P.3d 1255 (2001). In Neal, our Supreme Court analyzed the validity of CrR 6.13(b) under the "adequate indicia of reliability" test articulated by Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Roberts was overruled by Crawford, because the Court ruled that the adequate "indicia of reliability" test was unreliable in practice. Crawford, 541 U.S. at 62-63. Therefore, the holding in Neal is no longer binding.
The jury found Shultz guilty. Shultz appeals her conviction of Count I, possession of methamphetamine.
ANALYSIS
Shultz argues that the trial court erred when it admitted the lab report because Shultz did not have the opportunity to confront Kittilstved in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, § 22 of the Washington State Constitution. The State concedes that, under the particular circumstances of this case, admission of this lab report violated Shultz's right to confrontation under the federal Constitution.
Accepting the State's concession, we reverse Shultz's conviction of Count I, possession of methamphetamine.
It is undisputed that Shultz did not have the opportunity to cross-examine Kittilstved, the maker of the admitted lab report. The United States Supreme Court has not defined what constitutes "testimonial" evidence. Crawford, 541 U.S. at 68 ("We leave for another day any effort to spell out a comprehensive definition of `testimonial.'"). Instead, the Court admitted that a definition must be built on a case by case basis. Crawford, 541 U.S. at 68, n. 10. Presently, the state of the law is unresolved as to whether a forensic lab report is testimonial evidence. Washington courts have not directly addressed whether a lab report is testimonial. See State v. Kirkpatrick, 160 Wn.2d 873, 883 n. 13, 161 P.3d 990 (2007) (listing cases where other courts have held lab reports to be testimonial). In fact, the United States Supreme Court recently heard argument on this issue in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 128 S. Ct. 1647, 170 L. Ed. 2d 352 (2008). The eventual decision in Melendez-Diaz will supersede any analysis we might otherwise articulate in the case before us.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and QUINN-BRINTNALL, J., concur.