Miller v. State

• Decision Date: 01 July 1996
• Docket Number: No. S96A0167,S96A0167
• Citation: 472 S.E.2d 74,266 Ga. 850
• Parties: MILLER v. The STATE
• Court: Georgia Supreme Court

Page 74

472 S.E.2d 74

266 Ga. 850

MILLER v. The STATE

No. S96A0167.

Supreme Court of Georgia.

July 1, 1996.

Eric Alvin Ballinger, H. Stephen Abernathy, Conrad & Abernathy, Canton, for Jeffery Miller.

Daniel Terrence Stringer, Solicitor, Cherokee/Forsyth Counties, Cumming, for State.

Donald F. Samuel, Garland, Samuel & Loeb, Nicholas A. Lotito, Davis Zipperman Kirschenbaum & Lotito, Atlanta, for amicus appellant.

Spencer Lawton, Jr., Dist. Atty., Savannah, Keith C. Martin, Solicitor, State Court of Clayton County, Richard W. Shelton, Solicitor, State Court of Lowndes County, Valdosta, A. Glen Hollingshed, Dallas, Michael J. Bowers, Atty. Gen., Dept. of Law, Neal B. Childers, Asst. Atty. Gen., Atlanta, for amicus appellee.

BENHAM, Chief Justice.

After witnessing a car make several turns without signals being given, a Cherokee County deputy sheriff stopped the vehicle and approached the driver, appellant Jeffrey Miller. Miller was arrested when he was unable to show proof of insurance and a license check revealed that his driver's license had been suspended. When the arresting officer conducted a pat-down search of Miller, he found a clear plastic bag containing what he believed to be marijuana. Miller was charged with possession of less than one ounce of marijuana, and the suspected contraband was sent to the Georgia State Crime Lab for analysis. The forensic chemist who performed tests on the substance did not testify at appellant's trial. Instead, acting pursuant to OCGA § 35-3-16, the Cherokee County solicitor tendered a certified copy of the drug analysis from the Crime Lab and an affidavit executed by the lab analyst, and the trial court relied on § 35-3-16 to admit the documents as evidence, over appellant's objection that use of the documents impinged upon his constitutional right to confront the witnesses against him. ¹

The affidavit used in the case at bar identified the affiant as a forensic drug chemist employed by the GBI Division of Forensic Sciences who had conducted the examination and analysis on the material purportedly found in appellant's possession. The report stated that the substance, weighing less than one gram when electronic balances and/or mechanical scales were used, tested positive for marijuana when microscopy and gas chromatography/mass spectrometry tests were conducted. Appellant was found guilty of the possession charge as well as the driving offenses. He appeals only the marijuana conviction, contending that the use of the certified copy of the crime lab drug analysis in lieu of the testimony of the lab technician violated his right to confront the witnesses against him, as guaranteed him by the Sixth Amendment to the U.S. Constitution, and Art. I, Sec. I, Para. XIV of the Georgia Constitution.

1. OCGA § 35-3-16 was passed during the 1994 session of the General Assembly. It authorizes, in certain drug or alcohol-related prosecutions, the admission in evidence of a sworn certificate, in lieu of trial testimony, by the employee of the GBI Division of Forensic Sciences who analyzes the substance submitted to the laboratory by a law enforcement agency. After conducting a post-session interview with the representative who sponsored the bill now codified as § 35-3-16, one commentator has concluded that the bill was passed by the legislature to "effect a 'shortcut' to admissibility of certain types of evidence and promote judicial economy" in response to complaints by district attorneys that state crime lab personnel spent much time and tax money appearing at trials throughout Georgia to authenticate evidence. Waggoner, 11 GSU Law Review 209 (1994).

The certificate authorized by OCGA § 35-3-16 must contain "a statement establishing the type of analysis performed, the result achieved, and that the subscriber is the person who performed the analysis." OCGA § 35-3-16(b). ² When the certificate is properly executed and the procedures of § 35-3-16(c) have been followed, the certificate is "admissible evidence of the composition, quality, and quantity of the substance submitted to the laboratory for analysis...." Id. Subsection (c) requires the party intending to introduce the certificate to serve notice of its intent at least ten days before the proceeding begins. ³ Within ten days of receipt of the notice, the opposing party who intends to object to the admission of the certificate must give notice of objection and the grounds for the objection. The statute provides that a proffered certificate will be admitted into evidence unless it appears from the notice of objection and the grounds stated therein that "the composition, quality, quantity, or chain of custody of the substance submitted to the laboratory for analysis will be contested in good faith at trial." In the case at bar, appellant filed a timely objection to the solicitor's notice of intent to proffer the certificate, asserting that use of the certificate in lieu of the analyst's testimony denied him his constitutional right to confront the witnesses against him. The trial court overruled appellant's objection, ruling that confrontation rights were preserved since the analyst would be required to be present in court if the defendant raised the appropriate objection. See OCGA § 35-3-16(c). After so ruling, the trial court admitted the lab analyst's certificate and affidavit. It is undisputed that the analyst's certificate admitted in the case at bar is hearsay as it rests mainly on the veracity and competency of a person not in court. OCGA § 24-3-1. ⁴

2. "[A] solemn act of the legislature is presumed to be constitutional. [Cit.]" State of Georgia v. Davis, 246 Ga. 761(1), 272 S.E.2d 721 (1980). Only when a statute manifestly infringes upon a constitutional provision or violates the rights of the people should the judicial branch impede its operation. Park v. Candler, 114 Ga. 466, 472, 40 S.E. 523 (1902). With those principles in mind, we examine the interplay between this statute and a defendant's constitutional right to confront the witnesses against him.

The Confrontation Clause embodied in the Sixth Amendment

(1) insures that the witness will give his statements under oath--thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). The "central concern" of the Confrontation Clause is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). However, the Clause does not guarantee a criminal defendant an absolute right to a face-to-face meeting with the witnesses against him at trial. Id. Furthermore, the Clause "does not necessarily prohibit the admission of hearsay statements against a criminal defendant even though the admission of such statements might be thought to violate the literal terms of the Clause. [Cits.]" Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990). See Littles v. Balkcom, 245 Ga. 285(2), 264 S.E.2d 219 (1980). Thus, the fact that OCGA § 35-3-16 authorizes the admission of hearsay evidence in the absence of the declarant does not, in and of itself, render the statute unconstitutional as a violation of the right of confrontation.

However, the use of hearsay testimony to support a criminal conviction is "bounded by the substantive limits of the confrontation clause." Cimildoro v. State, 259 Ga. 788(2), 387 S.E.2d 335 (1990). "The crux of the question presented is ... whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clause, has carried its burden of proving that the [hearsay evidence] bore sufficient indicia of reliability to withstand scrutiny under the Clause." Idaho v. Wright, supra, 497 U.S. 805 at 816, 110 S.Ct. 3139 at 3147. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception since such an exception "satisfies the constitutional requirement of reliability because of the ... judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements." Id., at 817, 110 S.Ct. at 3147. Should the hearsay evidence not fall within a firmly rooted exception to the rule against the admission of hearsay, it may nevertheless survive Confrontation Clause scrutiny for reliability "if it is supported by a 'showing of particularized guarantees of trustworthiness.' " Id. Furthermore, should the hearsay evidence not fall within a firmly rooted exception, the unavailability of the hearsay declarant must be established. See Higgs v. State, 256 Ga. 606, 609, 351 S.E.2d 448(1987); Barnett v. State, 211 Ga.App. 651, 652, 440 S.E.2d 247 (1994). Cf. White v. Illinois, 502 U.S. 346, 358-60, 112 S.Ct. 736, 744, 116 L.Ed.2d 848 (1992).

3. It is clear that the certificate, as admitted, does not fit within any statutorily-recognized hearsay exception in Georgia. See OCGA §§ 24-3-3 through 17. While the certificate might be a writing or record made in the regular course of business as a memorandum or record of an event, it is not admissible as a business record without a foundation being laid "through the testimony of a witness who is familiar with the method of keeping records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter. [Cit.]" Suarez v. Suarez, 257 Ga....