Kettle v. State, 91-KA-00686
| Decision Date | 30 June 1994 |
| Docket Number | No. 91-KA-00686,91-KA-00686 |
| Citation | 641 So.2d 746 |
| Parties | Jerry KETTLE a/k/a Gerald Kettle v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Thomas L. Rosenblatt, Woodville, for appellant.
Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, C.J., and McRAE and JAMES L. ROBERTS, JR., JJ.
Jerry, a/k/a "Gerald" Kettle has appealed his conviction in the circuit court of Wilkinson County of the sale of cocaine and sentence to twenty (20) years' imprisonment. At issue is the introduction into evidence of a laboratory report following the court's overruling Kettle's motion in limine that doing so would violate his Sixth Amendment right to confrontation. The laboratory report contained the results of tests performed on the substance purchased from Kettle and was introduced by a person other than the one who conducted the tests. While the introduction of such a report can meet the requirements of Rule 803(6) M.R.E, and may be competent prima facie evidence of what it purports, upon proper motion in such a case, the defendant is entitled to have the person who conducted the test testify in person. Such motion having been made in this case, we reverse.
Kettle was indicted on March 12, 1991, for having sold on May 2, 1990, to George McNabb "a quantity of the Schedule II Controlled Substance known as Cocaine." On June 18, 1991, the date of trial, he filed a motion in limine, pertinent portions of which state:
2. The defendant believes and hence alleges that at his trial the State will attempt to introduce a crime laboratory report into evidence, along with testimony by a laboratory supervisor, who himself did not make out the report.
....
7. In addition to evidentiary concerns of reliability, the use of the report will violate the confrontation clause of the 6th Amendment to the United States Constitution, made applicable to the State by the 14th Amendment.
5. No objection during the course of the trial or instruction to the jury on proper valuation of the evidence will be sufficient to lessen the harm done to the defendant by the reference to or introduction of the lab report. The jury will infer that the report is true and accurate, even though its maker does not testify or subject himself to cross examination.
At the beginning of trial, defense counsel brought the motion to the attention of the court:
MR. ROSENBLATT:
Your Honor, I have three motions.
The State has informed that they intend to bring down an expert who is not the person who prepared the report.
(Off the record, argument by counsel.)
At this time, the Court will overrule the motion, but will allow for the cross-examination by the defendant in this regard of the proferred witness.
Now, let's take up the second motion.
Vol. II, 28-29.
In the presentation of the State's case-in-chief, Charles Terry, the person in charge of the drug analysis section of the Mississippi Crime Lab, or supervisor, testified and introduced into evidence the substance purchased from Kettle, and testified from the laboratory records that it was cocaine. Terry did not make the test, which was made by Jon Maddox.
Defense counsel made no objection to this testimony, and on cross-examination attempted to elicit from Terry that he did not know first-hand what the packet contained. Terry responded that he was testifying as to the records and to answer any questions about the procedures.
Kettle was convicted of the sale of cocaine, sentenced to twenty years' imprisonment, and has appealed.
I. FAILURE TO OBJECT
The State first argues that by failing to object, Kettle has waived the error in introducing the laboratory report. We disagree. The motion was quite specific, and was overruled. While it would have been preferable, and by far the safer practice for Kettle to have renewed his objection, we find the error in this case was sufficiently preserved by language of the motion in limine, which the court overruled, leaving Kettle's recourse to "cross-examination." Wimer v. Hinkle, 180 W.Va. 660, 379 S.E.2d 383 (1989); Uptain v. Huntington Lab., Inc., 723 P.2d 1322 (Colo.1986); Reyes v. Missouri Pacific Railroad Co., 589 F.2d 791 (5th Cir.1979); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979); State v. Foster, 296 Or. 174, 674 P.2d 587 (1983); State v. Kelly, 102 Wash.2d 188, 685 P.2d 564 (1984).
Faced with the waiver question, the Colorado Supreme Court held in Uptain:
... Presentation of issues by means of motions in limine offers opportunities to expedite trials, eliminate bench conferences, avoid juror annoyance and permit more accurate rulings.... When, as here, a specific evidentiary issue is presented to the trial court in advance of trial, the primary purposes of the contemporaneous objection rule--to permit the trial court to accurately evaluate the legal issues and to enable the appellate court to apprehend the basis of the objection--are satisfied. Requiring an additional formal objection and ruling in all cases would undermine the benefits provided by the motion in limine procedure. We conclude that under the circumstances of this case, where the issue of the admissibility of the specific evidence was fully argued at the trial court on the same grounds argued by the non-prevailing party on appeal, the plaintiff's motion in limine constituted a timely objection for purposes of CRE 103(a)(1).
Uptain, 723 P.2d at 1330-31 (footnotes omitted).
And, in Wimer the West Virginia Supreme Court held:
The fundamental purpose of an objection to evidence is to bring to the court's attention potentially inadmissible evidence so that the court may make a ruling on the question. A corollary principle is that ordinarily a party may not claim evidentiary error on appeal where no objection is made at the trial level. This is designed to prevent a party from obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the objection and thereby correct potential error.
When tested by these standards, we believe the trial court was given a fair opportunity to consider this matter, and there was a sufficient objection to preserve the point.... A different result may be warranted where there is a significant change in the basis for admitting the evidence. When this occurs, a further objection may be required. Here, there was no change in the basis for admitting the evidence from the time the in limine ruling was made until the evidence was introduced at trial. Therefore, the plaintiff's objection to the in limine ruling preserved the point.
Wimer, 180 W.Va. at 663, 379 S.E.2d at 386 (footnotes omitted).
Addressing the assignment of error on its merits, the issue is whether the testimony of Terry, the custodian of the drug analysis records, was competent under Rule 803(6) of the Mississippi Rules of Evidence (MRE), which provides:
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
In Barnette v. State, 481 So.2d 788 (Miss.1985), we considered Miss.Code Ann. Sec. 13-1-114 (Supp.1985), an evidentiary statute authorizing certificates to be admitted as evidence in a cocaine sale case. Miss.Code Ann. Sec. 13-1-114 provides:
13-1-114. Admissibility of certificate of physician, chemist, or technician as proof of identity of controlled substance.
(1) In the prosecution for a criminal offense where testimony of an analysis of a controlled substance, as defined in sections 41-29-113, 41-29-117, 41-29-119 and 41-29-121, by a physician, chemist or technician is called for, the certificate of such person shall be admissible as evidence of the facts stated therein and of the results of the analysis referred to therein provided that:
(a) The analysis is performed in a court-approved laboratory; and
(b) The certificate of analysis is duly attested to by the physician, chemist or technician performing said analysis.
(2) On motion of any party in any misdemeanor or felony case, and within a reasonable time prior to trial, the court may require the official making the analysis to appear as a witness.
In Barnette we held:
Of course, an essential element of the crime of selling a controlled substance is that the substance sold is indeed a controlled one within the purviews of Mississippi Code Annotated Section 41-29-139 (Supp.1985). This must be determined by a chemical analysis. To allow, without the consent of the defendant, this essential element to be proven solely by a certificate of the analyst impermissibly lessens the constitutionality required burden which is on the state.
The allowance of such also denies the defendant the constitutionally guaranteed right to confront and cross examine witnesses against him.
We hold that it was reversible error to admit, over the objection of Barnette, the certificate of analysis into evidence without the testimony of the analyst who prepared such.
An evidentiary rule can rise no higher in meeting constitutional standards than an evidentiary statute. While it is true that a custodian under the rule could introduce the records in his care and...
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