Chambers v. State

• Decision Date: 01 November 2012
• Docket Number: No. CR 12–538.,CR 12–538.
• Citation: 424 S.W.3d 296,2012 Ark. 407
• Court: Arkansas Supreme Court
• Parties: Derek D. CHAMBERS, Appellant v. STATE of Arkansas, Appellee.

2012 Ark. 407

424 S.W.3d 296

Derek D. CHAMBERS, Appellant

v.STATE of Arkansas, Appellee.

No. CR 12–538.

Supreme Court of Arkansas.

Nov. 1, 2012.

The Cannon Law Firm, P.L.C., by: David R. Cannon, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

JIM GUNTER, Justice.

Appellant was convicted of driving while intoxicated (DWI) and following too close and now appeals his conviction for DWI, arguing that the circuit court erred in allowing testimony regarding the administration and results of his breathalyzer test because the person who calibrated the machine was not made available to testify, which violated appellant's Confrontation Clause rights.We have granted a petition for review in this case; therefore, we have jurisdiction pursuant to Ark. Sup.Ct. R. l–2(e).We affirm.

On April 9, 2010, Sergeant Jeff Lane of the Benton Police Department initiated a traffic stop on a vehicle driven by appellant after observing the vehicle following too close to an eighteen-wheeler.Lane detected an odor of intoxicants and observed that appellant's eyes were bloodshot and his speech was slurred.After performing a series of field-sobriety tests, Lane called Officer Steven Beck, a member of the DWI task force, to take custody of appellant.Beck transported appellant to the Benton Police Department, where another officer read appellant his statement of rights.Beck then administered two blood-alcohol tests using the BAC Datamaster; the first test showed a result of .105, and the second test showed a result of .108. Appellant was later found guilty of DWI and following too close in the Saline County District Court.Appellant was fined $150 for following too close and $1100 for DWI.In addition, appellant was sentenced to one day in jail with a one-day credit and given a thirty-day suspended sentence.Appellant timely appealed to the Saline County Circuit Court.

On April 19, 2011, appellant filed a motion for discovery requesting, inter alia,

the presence of, and gives notice of his intent and desire to cross-examine the BAC operator, any person employed by law enforcement who was in anyway associated with the calibration, certification or operation of the BAC Datamaster, and any person from the Department of Health blood alcohol program, who was in any way associated with the calibration, certification or operation of the BAC Datamaster used in determining the Defendant's blood alcohol concentration in accordance with A.C.A. § 5–65–206(d)(2).

A bench trial was held on June 23, 2011.During the testimony of Officer Beck, appellant objected to the introduction of certificates from the Arkansas Department of Health that certified that the BAC Datamaster was properly certified and calibrated.Appellant argued that the certificates were testimonial hearsay and that their admission would be a violation of the confrontation clause according to Melendez–Diaz v. Massachusetts,557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314(2009).Appellant asserted that, in his motion for discovery, he had requested the presence of all persons from the Arkansas Department of Health who were associated with calibrating or certifying the BAC Datamaster, and because the State had not provided for those persons to be in attendance, the certificates and test results from the BAC Datamaster should not be admitted.In response, the State argued that the certificates were not testimonial in nature and that Melendez–Diaz did not apply to nontestimonial equipment records of this type.

Appellant then argued that while the applicable Arkansas statute requires the defense to subpoena any analyst it wishes to cross-examine, the Supreme Court in Melendez–Diaz declared that the State could not force a defendant to subpoena a State's witness.The State disagreed and argued that the Court said the states were free to implement procedural requirements to this right of confrontation.The court overruled appellant's objection and ruled that the statute was constitutional and that “the case law that has been cited by each of the parties does not necessarily apply to the situation involved here with these certificates.”The State proceeded to introduce, inter alia, an Operator Certificate for Breath Testing issued to Officer Beck, an Instrument Certificate for the BAC Datamaster in question showing that the machine had been certified on April 1, 2010, and the ticket printout from the BAC Datamaster showing the results of appellant's breathalyzer test.

After the close of the evidence, and the renewal of appellant's objections, the court found appellant guilty of following too close and DWI.In a judgment filed June 28, 2011, appellant was sentenced to pay costs of $300 and to pay a fine of $930.Appellant appealed to the court of appeals, which affirmed the circuit court in Chambers v. State,2012 Ark. App. 383, 2012 WL 2129334.Appellant then petitioned this court for review, which was granted on August 14, 2012.When we grant review of a decision by the court of appeals, we review the case as though the appeal had originally been filed in this court.Hudak–Lee v. Baxter Cnty. Reg'l Hosp.,2011 Ark. 31, 378 S.W.3d 77.

On appeal, appellant again asserts that the circuit court erred in allowing testimony regarding the administration and results of the breathalyzer test.This court has said that trial courts have broad discretion in evidentiary rulings and that a trial court's ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion.Travis v. State,371 Ark. 621, 269 S.W.3d 341(2007).Questions of constitutional interpretation are subject to a de novo standard of review.Vankirk v. State,2011 Ark. 428, 385 S.W.3d 144.

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas,380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923(1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”In Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), the United States Supreme Court held that the Confrontation Clause guarantees a defendant's right to confront those “who ‘bear testimony’ ” against him.Id. at 51, 124 S.Ct. 1354.A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.Id. at 54, 124 S.Ct. 1354.The Crawford opinion described the class of testimonial statements covered by the Confrontation Clause as follows:

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[.]”

Id. at 51–52, 124 S.Ct. 1354(internal citations omitted).

Two recent United States Supreme Courtcases have dealt with the effect of the Crawford decision with respect to scientific reports.In Melendez–Diaz, supra,the prosecution introduced affidavits reporting the results of forensic analysis, which confirmed that the substance seized by the police and connected to the defendant was cocaine.The Supreme Court held that the affidavits were testimonial in nature, as they had been created for the sole purpose of providing evidence against the defendant and were “functionally identical to live, in-court testimony.”Id. at 310–11, 129 S.Ct. 2527.Thus, the affiants were witnesses subject to the defendant's right of confrontation, and without a showing that the analysts were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine them, the defendant was entitled to cross-examine the analysts at trial.The Court also rejected the claim that no Confrontation Clause violation had occurred because the defendant had the ability to subpoena the analysts:

Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused.More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.

Melendez–Diaz,557 U.S. at 324–25, 129 S.Ct. 2527.

Most recently, in Bullcoming v. New Mexico,––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610(2011), the defendant was charged with DWI, and the principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was above the legal limit.At trial, however, the prosecution did not call as a witness the analyst who performed the test and signed the report; instead, the prosecution called another analyst who was familiar with the testing procedures but had not participated in testing the defendant's blood sample.The New Mexico Supreme Court held that the defendant's confrontation rights were not violated, but the Supreme Court reversed and held that a scientific report could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation....