Jenkins v. State

• Decision Date: 20 December 2012
• Docket Number: No. 2010–CT–00203–SCT.,2010–CT–00203–SCT.
• Citation: 102 So.3d 1063
• Parties: Robert L. JENKINS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

102 So.3d 1063

Robert L. JENKINS

v.STATE of Mississippi.

No. 2010–CT–00203–SCT.

Supreme Court of Mississippi.

Oct. 4, 2012.

As Modified on Denial of Rehearing Dec. 20, 2012.

Dissenting Opinion on Denial of Rehearing Dec. 20, 2012.

Phillip Broadhead, Office of Indigent Appeals by Leslie S. Lee, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Presiding Justice, for the Court:

¶ 1. Robert Lee Jenkins was convicted in the Circuit Court for the Second Judicial District of Harrison County for possession of a controlled substance. He was sentenced to life imprisonment under the habitual-offender statute. Miss.Code Ann. § 99–19–83 (Rev.2007). On appeal, we assigned the case to the Court of Appeals, which affirmed. We granted Jenkins's petition for writ of certiorari to examine whether the trial court erred by allowing a laboratory supervisor to testify regarding the results of substance testing, where the supervisor reviewed and verified the results, but another analyst actually performed the tests. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shortly before midnight on January 27, 2007, Biloxi police officer Michael Brennan observed Robert Jenkins stumbling as he walked down the street. Brennan approached Jenkins to ascertain his sobriety and noticed that Jenkins's speech was slurred, his breath smelled of alcohol, his eyes were bloodshot, and his balance was unsteady. Concluding that Jenkins was intoxicated, Brennan commenced the process of taking Jenkins into custody for public intoxication. At that point, Brennan noticed a white tissue in Jenkins's mouth. Brennan directed Jenkins to place the tissue on the hood of the patrol car, and when Jenkins complied, a white rock rolled out of the tissue. Jenkins quickly grabbed and swallowed the loose rock. Two additional rocks were found in the tissue, which were taken into evidence and submitted to the Mississippi Crime Laboratory. Jenkins was arrested for public intoxication and possession of a controlled substance.

¶ 3. Jenkins was indicted for possession of cocaine in an amount of more than 0.1 gram but less than 2 grams. Miss.Code Ann. § 41–29–139 (Rev.2009). The case went to trial in the Circuit Court for the Second Judicial District of Harrison County, Judge John C. Gargiulo presiding. The State called Timothy Gross, associate director of the Mississippi Crime Laboratory and manager of the Gulf Coast Regional Laboratory, to testify at trial regarding identification of the controlled substance. Gross was the supervisor and technical reviewer in this case, and he was called to testify in lieu of Alison Smith, the laboratory analyst who had performed the testing procedure that identified the substance seized from Jenkins as cocaine. Smith was on indefinite medical leave and unavailable to testify. Jenkins objected because Gross did not conduct the actual examination. Outside the presence of the jury, Judge Gargiulo heard testimony from Gross regarding his involvement in the testing process.

¶ 4. Gross testified that Smith had completed both a chemical test and gas chromatography massspectroscopy on the substance. Gross did not participate in or observe Smith's testing of the substance, but he was the “case technical reviewer” assigned to the matter. As the technical reviewer, Gross reviewed all of the data submitted and the report generated by Smith to ensure that the data supported the conclusions contained in Smith's laboratory report. Gross testified that, based on his review of Smith's analysis, he reached his own conclusion that the substance was cocaine. The certified laboratory report was signed by both Smith and Gross, identifying Smith as the case analyst and Gross as the technical reviewer.

¶ 5. Following questioning by attorneys for the State and defense, Judge Gargiulo examined Gross. The relevant portion of the record reads as follows:

THE COURT: Did you oversee the results of Ms. Smith's tests?

GROSS: Yes, yes.

THE COURT: Okay.

GROSS: That is my function as the technical reviewer is to ensure that the data in the case files supports the conclusions.

THE COURT: Alright. And do you conduct any procedural checks?

GROSS: The Mississippi Crime Laboratory has quite an extensive quality control regimen that is followed by every analyst.

THE COURT: ... did you have to verify the results of the analysis?

GROSS: Yes.

Judge Gargiulo found that Gross's participation as the technical reviewer was sufficient to satisfy the Sixth Amendment right to confrontation. Gross was accepted as an expert witness and allowed to testify regarding the test results and chain of custody. The trial proceeded with the State's introduction of the laboratory report through Gross's testimony.

¶ 6. Ultimately, the jury found Jenkins guilty of possession of a controlled substance. The trial court adjudicated Jenkins an habitual offender pursuant to Mississippi Code Section 99–19–83 and sentenced him to life imprisonment. Miss.Code Ann. § 99–19–83 (Rev.2007). Jenkins appealed, and we assigned the case to the Court of Appeals. The Court of Appeals affirmed. Jenkins filed a petition for writ of certiorari, which we granted.

DISCUSSION

¶ 7. We granted certiorari to examine one issue—whether the trial court erred by allowing Gross, the laboratory supervisor, to testify in place of the analyst who had performed the substance testing. See Harness v. State, 58 So.3d 1, 4 (Miss.2011) (under Mississippi Rule of Appellate Procedure 17(h), this Court may limit the question for review upon grant of certiorari). Jenkins contends that his Sixth Amendment right to confrontation was violated because he was not provided an opportunity to cross-examine the analyst who had performed the testing on the substance and authored the forensic report admitted as evidence against him. “Our standard of review regarding admission or exclusion of evidence is abuse of discretion.” Smith v. State, 25 So.3d 264, 269 (Miss.2009) (citing Brown v. State, 965 So.2d 1023, 1026 (Miss.2007)). Constitutional issues are reviewed de novo. Id. (citing Hayden v. State, 972 So.2d 525, 536 (Miss.2007)).

¶ 8. First, we address the Court of Appeals' finding that Jenkins's Confrontation Clause issue was procedurally barred from review because there was no motion in limine or contemporaneous objection.¹ Jenkins did not raise the issue in a motion in limine, but he sufficiently objected to Gross's testimony at trial. Upon being notified that Gross would testify, the trial judge said, “I am understanding that the defense is objecting to the witness based on hearsay and the fact that ... Gross did not personally conduct the actual examination.” Counsel for Jenkins confirmed that was the defense's objection. Following a hearing held outside the presence of the jury, the trial judge overruled the objection and allowed Gross to testify. Thus, we disagree with the Court of Appeals' finding that Jenkins's Confrontation Clause issue was procedurally barred. We now proceed to discuss the merits of Jenkins's Confrontation Clause argument.

¶ 9. The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. The United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars the admission of “testimonial statements” made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Wash., 541 U.S. 36, 53–54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Though there is no exhaustive list defining testimonial statements, “[a] document created solely for an ‘evidentiary purpose’ ... ranks as testimonial.” Bullcoming v. N.M., ––– U.S. ––––, ––––, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) (quoting Melendez–Diaz v. Mass., 557 U.S. 305, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009)). Forensic laboratory reports created specifically to serve as evidence against the accused at trial are among the “core class of testimonial statements” governed by the Confrontation Clause. Melendez–Diaz, 129 S.Ct. at 2532.

¶ 10. In Melendez–Diaz, the prosecution introduced three sworn certificates of state laboratory analysts, which provided that evidence seized from the defendant was cocaine, without any live testimony. Id. at 2531. Because the certificates, or affidavits, were the functional equivalent of live testimony, the analysts who had tested the substance were witnesses subject to the Confrontation Clause. Id. at 2532. The Supreme Court noted that forensic evidence is no more reliable or straightforward than any other form of testimonial evidence. Id. at 2536–38. Therefore, the prosecution was required to make the analysts available for Confrontation Clause purposes. Id. at 2532.

¶ 11. In Bullcoming, the evidence introduced was “a forensic laboratory report certifying that Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI.” Bullcoming, 131 S.Ct. at 2709. The laboratory analyst who testified about the report “was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample.” Id. The Supreme Court held that the “surrogate testimony” of a lab analyst “who did not sign the certification or perform or observe the test reported in the certification” did not satisfy the Sixth Amendment right to confrontation. Id. at 2710. In Justice Sotomayor's separate opinion, concurring in part, she emphasized the “limited reach” of the Bullcoming decision, because the testifying analyst in that case “had no involvement whatsoever in the relevant test and report.” Id. at 2719, 2722 (Sotomayor, J., concurring in part). Justice Sotomayor stated:

[T]his...