Martin v. State

• Decision Date: 30 August 2006
• Docket Number: No. 1D04-1598.,1D04-1598.
• Citation: 936 So.2d 1190
• Parties: Jermaine L. MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

936 So.2d 1190

Jermaine L. MARTIN, Appellant, v. STATE of Florida, Appellee.

No. 1D04-1598.

District Court of Appeal of Florida, First District.

August 30, 2006.

Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.

Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, J.

Jermaine Lamar Martin appeals his convictions for possession of cocaine and possession of cannabis arguing, in part, that the trial court erred in admitting, over objection, a report of the Florida Department of Law Enforcement (FDLE), which indicated that the substances seized from Martin were contraband. The prosecution offered this report under the business records exception to the hearsay rule in lieu of presenting at trial the live testimony of the person who performed the tests. The defense objected to the admission of the lab report,¹ arguing that admission of such without the testimony of the author of the report denied Martin his right under federal and state Confrontation Clauses.² We hold that the admission of the FDLE report as a business record without giving appellant the right to examine the author of the report was reversible error.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court established a test for determining when the admission of hearsay evidence violates the Confrontation Clause of the United States Constitution. The Crawford court held that the admission of hearsay evidence which was "testimonial" in nature violates the Confrontation Clause unless the declarant is unavailable to testify and unless the defendant had a prior meaningful opportunity to cross-examine the declarant. Id. 124 S.Ct. at 1369. While Crawford did not provide a comprehensive definition of "testimonial," it did explain that business records "by their nature" are not testimonial, id. 124 S.Ct. at 1367, but that statements "reasonably expect[ed] to be used prosecutorially" or which "would be available for use at a later trial" were. 124 S.Ct. at 1364. More particularly, the Court explained in Crawford that testimonial statements include:

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, [... and] 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. (emphasis added).

While the FDLE report at issue in the instant case may meet the definition of a business record under the Florida statute permitting admission of such records, see section 90.803(6), Florida Statutes (2003), an issue we do not address, the report obviously was prepared for litigation purposes. The testing memorialized in the report was occasioned solely by the arrest of appellant and was performed by a state law enforcement agency, and the report was offered by the State in furtherance of a criminal prosecution.

Applying Crawford, Florida courts have consistently held that records such as the FDLE report before us are testimonial in nature. In Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005), we held that a "breath test affidavit" prepared by a law enforcement officer following the arrest of the subject tested was testimonial hearsay evidence in that the affidavit "contained statements one would reasonably expect to be used prosecutorially and was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial." Id. at 618; see also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2005) (holding that a breath-test affidavit was testimonial hearsay and not admissible as a business record because the affidavit was prepared in anticipation of trial); Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005) ("an FDLE lab report prepared pursuant to a police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record"), rev. granted, 924 So.2d 810 (Fla. 2006); Rivera v. State, 917 So.2d 210 (Fla. 5th DCA 2005) (explaining that while drug or alcohol tests performed by a hospital in the usual course of business are admissible as business records, similar tests performed by an FDLE lab are not pursuant to the Confrontation Clause); Sobota v. State, 933 So.2d 1277 (Fla. 2d DCA 2006).

Here, the State has not claimed that the person who tested the substances seized from appellant and who authored the report at issue was unavailable to testify. Also, the State has not claimed that the defense had been previously given an opportunity to examine the author of the FDLE report in a meaningful manner. Accordingly, the trial court erred in admitting the FDLE report, and the error cannot be deemed harmless as it was the only proof of the contraband nature of the items seized from appellant. See Crawford v. Washington.

Because a new trial is required, it is not necessary to address the other issue raised on appeal. The cause is REVERSED and REMANDED for a new trial.

POLSTON, J., concurs, and THOMAS, J., dissents with written opinion.

THOMAS, J. dissenting.

I respectfully dissent. I would align this court with those jurisdictions which have determined that laboratory reports are not "testimonial" and thus may be admitted into evidence without violating the Confrontation Clause and the Supreme Court's holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).³

The holding in Crawford is clearly limited to "testimonial" evidence, which generally involves statements by witnesses, and not routine records produced in the ordinary course of business by persons not directly involved with the prosecution or investigation of a case. As the majority stated in Crawford:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

541 U.S. at 68, 124 S.Ct. 1354 (footnote omitted) (emphasis added).

Although the Supreme Court did not conclusively define "testimonial," nothing in Crawford suggests that the definition would be stretched to include laboratory reports. In fact, the Court surmised in dicta that business records likely would not be included. Id. at 56, 124 S.Ct. 1354.

Section 90.803(6), Florida Statutes (2003), defines a business record as

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, 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 such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Thus, section 90.803(6) clearly includes the FDLE laboratory report.

In Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005), the Second District acknowledged that business records were not barred by Crawford because they could be considered nontestimonial:

[The Supreme Court] provide[d]a noncomprehensive list of testimony that would be considered testimonial: testimony at a preliminary hearing, testimony in front of a grand jury or at a trial, and testimony that results from police interrogation..... It also noted, in dicta, that certain hearsay statements are by their nature nontestimonial—such as business records[.]

Id. at 7 (emphasis added). However, the Second District held that FDLE reports could not be admitted into evidence because they were "intended to bear witness against the accused." Id. I respectfully disagree with this holding. I believe that an FDLE report is not always intended to bear witness against the accused, because it could also be used to exonerate the accused. Thus, I would find the FDLE laboratory report is admissible as a business record.

The majority opinion notes that "[w]hile the FDLE report at issue . . . may meet the definition of a business record under the Florida statute permitting admission of such records, see section 90.803(6), Florida Statutes (2003), an issue we do not address, the report obviously was prepared for litigation purposes." Because I agree that the FDLE report meets the statutory definition of a business record, I would follow this court's holding in Davis v. State, 562 So.2d 431 (Fla. 1st DCA 1990). I do not find the report here distinguishable from the National Health Laboratory report in Davis; both reports are equally...