State of Missouri, Respondent, v. Robert D. March, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State of Missouri, Respondent, v. Robert D. March, Appellant. Case Number: SC87902 Handdown Date: 03/20/2007 Appeal From: Circuit Court of Butler County, Hon. Mark L. Richardson Counsel for Appellant: Amy M. Bartholow Counsel for Respondent: Lisa M. Kennedy Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Acting on a search warrant, Poplar Bluff police entered the home of Robert March's girlfriend early one morning in September 2006. Police found March and his girlfriend asleep in bed. The officers told them to get out of the bed and moved them to the living room. Police observed that the girlfriend was clenching her toes and was walking with an unusual gait. They found, under her foot, a clear plastic bag containing off-white residue and "rocks" that the state argues tested positive for crack cocaine. Police also found more than $1,400 in March's jeans. Police arrested them both, and the state charged March with second-degree drug trafficking. During trial, the state offered into evidence a crime laboratory report, prepared by a forensic analyst, that stated that the plastic bag found under the girlfriend's foot was cocaine base weighing 2.7 grams. Because the analyst had moved to North Carolina prior to trial, the state presented the custodian of laboratory records to testify about the analyst's report. March objected, arguing the report is inadmissible because it contains testimonial hearsay and he did not have an opportunity to confront and question the analyst about the tests and his conclusions. He argued, therefore, admission of the report would violate the Confrontation Clause of the federal constitution under Crawford v. Washington, 541 U.S. 36 (2004). The court

admitted the report into evidence, and March was convicted of second-degree trafficking and was sentenced as a prior offender to 15 years in prison. He appeals. REVERSED AND REMANDED. Court en banc holds: (1) The confrontation clause to the federal constitution gives criminal defendants the right to confront witnesses against them. The United States Supreme Court has held that the confrontation clause demands that all testimonial evidence be excluded unless the person who made the statement is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). Two years later, the Supreme Court held that a statement made in response to a police interrogation is "testimonial" when its "primary purpose" does not respond to an ongoing emergency but rather establishes or proves past events potentially relevant to later prosecution. Davis v. Washington, 126 S.Ct. 2266, 2273-2274 (2006). (2) Under these cases, it is clear that the laboratory report here constituted a "core" testimonial statement subject to the requirements of the Confrontation Clause that was offered to prove an element of the charged crime – that the substance March possessed was cocaine. The laboratory report was a sworn and formal statement offered in lieu of the analyst's testimony. It was created at the request of law enforcement for the purpose of prosecuting March. As such, it was testimonial and could not be admitted without the testimony of its preparer unless the witness is unavailable and there was a prior opportunity to cross examine. Neither of those requirements was met here. (3) In erroneously admitting the report into evidence without the analyst's testimony, the court violated March's rights under the Confrontation Clause. The report was essential during the trial, however, because it was the only evidence offered to prove that the substance March possessed was cocaine. Because the laboratory report contributed to the jury's verdict, the error was not harmless, and the case must be reversed and remanded. Citation: Opinion Author: Mary R. Russell, Judge Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions

for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Appellant Robert March challenges his conviction of second-degree drug trafficking, section 195.233, RSMo

1. He contends that a laboratory report identifying as cocaine base the substance seized during a search of his

girlfriend's apartment was testimonial evidence under Crawford v. Washington, 541 U.S. 36 (2004). He argues that his confrontation rights were violated because the report was admitted into evidence even though the crime laboratory analyst who prepared the report did not testify at trial. This Court finds that the report was testimonial and its admission without the analyst's testimony violated March's rights under the Confrontation Clause. The error in admitting the report was not harmless. The judgment is reversed, and the case is remanded. I. Factual Background Police officers entered the home of Keva Davis in the early morning hours to execute a search warrant. The officers went directly to the master bedroom, where Davis and March were sleeping. The couple was ordered to step out of bed, at which point one of the officers noticed a small object fall onto the floor. The officer looked on the floor, but did not see anything. As the officers moved Davis from the bedroom to the living room, they noticed that she was walking with an unusual gait. They found a clear plastic bag containing several rocks in her clinched toes. March was arrested and later charged with drug trafficking in the second degree. At his trial, the State sought to admit a crime laboratory report that documented the results of the forensic analysis that Dr. Robert Briner conducted on the substance the officers found Davis hiding under her foot. Dr. Briner concluded in the report that the substance was cocaine base and weighed 2.7 grams. Instead of calling Dr. Briner (who had moved to North Carolina) to testify about his report, the State called the custodian of the laboratory's record, Pam Johnson. March objected, arguing that the report contained testimonial hearsay and its admission without Dr. Briner's testimony violated the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004). The trial court overruled March's objection and admitted the report. The jury found him guilty. He appeals to this Court. This case was transferred to this Court by an order pursuant to Rule 83.04, as this case raises an issue of general

interest and importance. This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. II. Standard of Review Typically, appellate review of evidentiary rulings, such as the admission of chemical laboratory reports, is limited to whether the trial court abused its discretion. State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). But whether a criminal defendant's rights were violated under the Confrontation Clause by the admission of a laboratory report is a question of law that this Court reviews de novo. State v. Justus, 205 S.W.3d 872, 878 (Mo. banc 2006). III. Analysis March contends that the admission of the laboratory report violated his rights under the Confrontation Clause. That clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause demands that all testimonial evidence be excluded unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. 541 U.S. at 68. Crawford significantly changed the Confrontation Clause analysis for hearsay evidence. Before Crawford, an out- of-court statement could be admitted over a Confrontation Clause objection if the witness was unavailable to testify and the statement carried with it an adequate indicia of reliability. Crawford, 541 U.S. at 42 (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)). In order to have an "adequate indicia of reliability," the evidence must either "fall within a firmly rooted hearsay exception" or have "particularized guarantees of trustworthiness." Id. at 40 (quoting Roberts, 448 U.S. at 66). Pre-Crawford Missouri case law has held that laboratory reports prepared by an unavailable declarant are admissible against the defendant over a Confrontation Clause objection because they fall under the business records exception to the hearsay rule. See State v. Taylor, 486 S.W.2d 239, 242-43 (Mo. 1972). The State argues that the laboratory report should still be admissible under the business records exception to the hearsay rule. It cites dicta in Crawford that noted that the hearsay exceptions that existed in 1791, such as the business records exception, were

by their nature not testimonial. See Crawford, 541 U.S. at 56. Under Crawford, however, falling within a hearsay exception does not resolve the Confrontation Clause issue because Crawford divorced the hearsay exceptions from the Confrontation Clause analysis. Further, the business record exception in 1791 was a narrow one. Thomas v. United States, 914 A.2d 1, 13 (D.C. 2006). The State directs us to cases from other jurisdictions that hold that laboratory reports are business records, and such business records are not testimonial under the Confrontation Clause. However, generally these cases seem to incorrectly focus on the reliability of such reports.(FN1) The reliability of the reports, once paramount under Roberts, is now irrelevant. At issue in this case is whether the laboratory report was "testimonial" under Crawford. Crawford did not offer a precise definition of "testimonial statements." 541 U.S. at 68. It discussed how testimonial statements are made by witnesses who "bear testimony" and that "testimony" is defined as "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51. The Court stated that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. The Court cited three useful "formulations of this core class of 'testimonial' statements": (1) "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," (2) "extrajudicial statements ... contained in affidavits, depositions, prior testimony, or confessions," and (3) "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." Id. at 51-52. The United States Supreme Court further elaborated on "testimonial" statements in Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006). At issue in Davis was whether statements made during a 911 call were "testimonial." Id. at

2270-71. The Court held that a statement made in response to police interrogation is testimonial when its "primary purpose" is not to respond to an ongoing emergency but "to establish or prove past events potentially relevant to later criminal prosecution." Id. at 2273-74. Under the definitions of "testimony" and "testimonial" in Crawford, as well as the "primary purpose" test in Davis, it is clear that the laboratory report in this case constituted a "core" testimonial statement subject to the requirements of the Confrontation Clause. The laboratory report was prepared at the request of law enforcement for March's prosecution. It was offered to prove an element of the charged crime - i.e., that the substance March possessed was cocaine base. The report was a sworn and formal statement offered in lieu of testimony by the declarant. Use of sworn ex parte affidavits to secure criminal convictions was the principal evil at which the Confrontation Clause was directed. Crawford, 541 U.S. at 50. A laboratory report, like this one, that was prepared solely for prosecution to prove an element of the crime charged is "testimonial" because it bears all the characteristics of an ex parte affidavit. When a laboratory report is created for the purpose of prosecuting a criminal defendant, like this one was, it is testimonial.(FN2) It may not be admitted without the testimony of its preparer unless the witness is unavailable and there was a prior opportunity to cross examine. Neither of those requirements were met here. Thus, the admission of the report violated March's rights under the Confrontation Clause. Confrontation Clause violations are subject to the harmless error test found in Chapman v. California, 386 U.S.18, 24 (1967). United States v. Chapman, 356 F.3d 843, 846 (8th Cir. 2004). That test requires that the error be harmless beyond a reasonable doubt, meaning that there is no reasonable doubt that the error's admission failed to contribute to the jury's verdict. Id. Here, the laboratory report was essentially the only evidence offered to prove that the substance March possessed was cocaine. In order to find him guilty of drug trafficking, the jury must have found that the substance he possessed was cocaine. The error was not harmless in that the laboratory report contributed to the jury's verdict. IV. Conclusion The laboratory report constituted testimonial evidence. Its admission without Dr. Briner's testimony violated the

Confrontation Clause. The error in admitting the report was not harmless. The judgment is reversed, and the case is remanded.(FN3) All concur. Footnotes: FN1. See Perkins v. State, 897 So.2d 457, 464 (Ala. Crim. App. 2004) (autopsy report admissible under Crawford because it bore the earmark of reliability and furthered the integrity of the fact-finding process); People v. Johnson, 121 Cal.App.4th Supp. 1409, 1413 (Cal. Ct. App. 2004) ("routine documentary evidence" such as a laboratory report is not testimonial under Crawford); People v. Hinojos-Mendoza, 140 P.3d 30, 37 (Colo. Ct. App. 2006) (laboratory report admissible as to weight of cocaine seized because weighing incoming material to be tested is a routine laboratory procedure); Rollins v. State, 897 A.2d 821, 845-46 (Md. 2006) ("If the autopsy report contains only findings about the physical condition of the decedent that may be fairly characterized as routine, descriptive and not analytical, and those findings are generally reliable and are afforded an indicum of reliability, the report may be admitted into evidence without the testimony of its preparer, and without violating the Confrontation Clause"); Commonwealth v. Verde, 827 N.E.2d 701, 705 (Mass. 2005) (laboratory report of chemical analysis on cocaine admissible under Crawford because the test is neither discretionary nor based on opinion); State v. Dedman, 102 P.3d 628, 636 (N.M. 2004) (laboratory report showing blood alcohol content admissible under Crawford because the process of testing is routine, non-adversarial, and made to ensure an accurate measurement); State v. Forte, 629 S.E.2d 137, 143 (N.C. 2006) (laboratory report on DNA test not testimonial because such reports are routine, neutral and not inherently subject to manipulation or abuse); State v. Cao, 626 S.E.2d 301, 305 (N.C. Ct. App. 2006) (though not enough information in record on appeal about procedures to test cocaine to decide whether that report was admissible, in general laboratory reports may be admissible under Crawford if the testing is mechanical and the report contains objective facts not involving opinions or conclusions drawn by an analyst). FN2. Many jurisdictions have held that laboratory reports are testimonial. See Smith v. State, 898 So.2d 907, 916 (Ala. Crim. App. 2004) (admission of autopsy report without testimony of medical examiner who performed the autopsy violated Confrontation Clause); Thomas v. United States, 914 A.2d 1, 12-13 (D.C. 2006) (laboratory report identifying substance as cocaine testimonial); Belvin v. State, 922 So.2d 1046, 1054 (Fl. Dist. Ct. App. 2006) (breath test affidavit testimonial); Johnson v. State, 929 So.2d 4, 7 (Fl. Dist. Ct. App. 2005) (laboratory report identifying substance as cocaine testimonial); State v. Caulfield, 722 N.W.2d 304, 310 (Minn. 2006) (laboratory report identifying substance as cocaine testimonial); City of Las Vegas v. Walsh, 124 P.3d 203, 207 (Nev. 2005) (nurse affidavit on blood-alcohol analysis testimonial); People v. Rogers, 8 A.D.3d 888, 891-92 (N.Y. App. Div. 2004) (admission of blood alcohol test results violated Confrontation Clause); State v. Campbell, 719 N.W.2d 374, 376-77 (N.D. 2006) (laboratory report identifying substance as marijuana testimonial); State v. Crager, 844 N.E.2d 390, 396 (Ohio Ct. App. 2005) (DNA analyst's report testimonial); State v. Miller, 144 P.3d 1052, 1060 (Or. 2006) (laboratory reports concluding urine and pipe residue contained methamphetamine testimonial). FN3. As the judgment is reversed, March's other claim of error raised in this appeal need not be reviewed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.