People v. Defroe, No. D056479 (Cal. App. 4/19/2010)
| Decision Date | 19 April 2010 |
| Docket Number | No. D056479.,D056479. |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DARNELL WILLIAM DEFROE, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from a judgment of the Superior Court of San Bernardino County, No. FVA701572, Jon D. Ferguson, Judge. Reversed and remanded.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
A jury convicted Darnell William Defroe of transporting cocaine base and possessing cocaine base for sale. (Health & Saf. Code,1 §§ 11352, subd. (a), 11351.5.)
Defroe appeals his convictions, contending the trial court violated his constitutional rights and prejudicially erred by: (1) admitting testimony and documents reporting that the substance he was alleged to have transported and possessed was cocaine base, without according him an opportunity to cross-examine the analyst who tested the substance; (2) denying his motion to suppress evidence obtained after police detained him without a warrant; (3) failing to dismiss the charges after material evidence was destroyed or lost, or alternatively, by not instructing the jury that it should consider the loss of the evidence in determining his guilt or innocence; and (4) denying his motion for a new trial on the ground that Brady2 material was not timely disclosed.
We agree with Defroe's first contention, that the admission of the forensic cocaine analysis evidence violated his constitutional right of confrontation, and reverse on that ground.
Based on information obtained from a confidential informant, two narcotics police officers, Chris Tusant and Frank Tolerico, were watching for a red compact car at an intersection in Fontana, California. A red car arrived and parked in a McDonald's parking lot at that intersection. Defroe was in the front passenger seat, Gregory Fisher was in the back seat, and Defroe's girlfriend was driving. Defroe opened the car door and stepped out of the car. From 20 to 30 feet away, Tusant saw the hand grip and the rear part of a semiautomatic handgun between the front passenger's seat and the door of the car. Tusant pointed his gun at Defroe, identified himself as a Fontana police officer and told Defroe not to move. Defroe sat back into his seat, and obeyed Tusant's order to put his hands up. Tusant took Defroe out of the car and handcuffed him. Tusant then walked Defroe to the back of the car. As he was doing so, Tusant saw a baggie, tied in a knot and containing a round white substance he believed to be cocaine, hit the ground near Defroe's pant leg. Tusant saw Defroe kick the baggie under the car.
After retrieving the baggie and the handgun, Tusant arrested Defroe. Defroe told him, "The homie in the back seat gave me the gun because two white guys were walking up on us, and then you contacted us." Defroe continued, "I'm glad we didn't bring what we were going to bring." Searching Defroe, Tusant found $1,850 in his pocket, in bills of various denominations, including hundreds, a fifty, twenties, tens and fives. Based on the presence of the gun and the amounts of cocaine-like substance and cash, Tusant believed Defroe possessed cocaine for sale. Tusant submitted the baggie to the crime lab for analysis of the white substance and turned the currency over for forfeiture proceedings. He did not request fingerprinting analysis of either the baggie or money.
In addition to the cocaine charges (counts 2 & 3), the information charged Defroe with possession of a controlled substance with firearm (§ 11370.1, subd. (a), count 1).
The jury found Defroe guilty of transportation of a controlled substance (count 2) and possession for sale of a controlled substance (count 3), but deadlocked, 10 to 2, in favor of conviction on possession of a controlled substance with firearm (count 1). The court declared a mistrial as to count 1.
At sentencing, the court granted Defroe supervised felony probation for a period of three years and imposed a 365-day term to be served in county jail, along with certain fees and reimbursements to be paid after release from custody. The court dismissed count 1, possession of a controlled substance with firearm, on the prosecution's motion.
Defroe contends he was deprived of his Sixth Amendment right to confrontation by the admission of testimony and written laboratory reports showing that the substance contained in the baggie found under the car tested as cocaine base, without according him the opportunity to cross-examine the analyst who performed the tests. Before analyzing the merits of this claim, we first review the relevant proceedings and law.
At trial, Donald Jones, supervising criminalist with the San Bernardino County Sheriff's Department crime laboratory, testified that the substance in the baggie found under the car was 25.53 grams of cocaine base. Jones based his testimony on two laboratory reports and other records documenting testing performed by John Jermain, a laboratory analyst. Jones did not purport to render an opinion on the composition of the substance in the baggie based on his own knowledge and experience. Rather, his testimony relied solely on the crime lab's records and the reports of Jermain's testing (the laboratory reports). Jermain did not testify at any point in the proceedings. The prosecution sought to admit the reports themselves as business records.
Defroe objected to admission of the laboratory reports and Jones's testimony reporting the testing results, arguing that the results were testimonial because they were prepared for the purpose of trial and the prosecution was therefore required to produce the analyst who performed the testing. There was no showing Jermain was unavailable. The court overruled the objection based on the California Supreme Court's decision in People v. Geier (2007) 41 Cal. 4th 555 (Geier), and admitted the laboratory reports as business records.
The laboratory reports were completed forms entitled "Request for Analysis," showing the defendant and the offense for which the substance was submitted to the crime laboratory, as well as the typewritten report of the laboratory results.3 Both reports were signed by Jermain under the statement, "I hereby certify the foregoing laboratory analysis to be true under penalty of perjury." On each form, a preprinted blank in the analysis section for "date and time logged" was left blank.
Supervising criminalist Jones testified that at or near the time of the testing, crime lab analysts initially write the results of their testing in handwritten notes and then write a report at the bottom of their notes. The notes are reviewed by a second analyst who determines if the wording of the report is in accordance with the test results (a "technical review"). After the technical review, the case is forwarded to clerical staff for typing and is returned to the analyst, who makes sure it is typed correctly and signs it.
Based on Jermain's notes, Jones testified that the tests Jermain ran on the substance were reliable tests the crime lab typically uses in controlled substance analysis, including a color test, two micro-crystal tests and a thin-layer chromatography test. The crime lab file also contained the prosecuting attorney's request for additional testing to determine the form of cocaine. Jones testified that in response to that request, Jermain performed a Fourier Transform Infrared Spectrophotometry.
On cross-examination, Jones acknowledged he had no firsthand knowledge of the substance or the tests, but that he testified as a "custodian of the records" with the background necessary to interpret the results. Jones acknowledged he would not be able to answer questions about the testing other than as they pertained to standard practices and procedures and information appearing in the crime lab file.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." (U.S. Const., 6th Amend.) This right renders testimonial statements by a nontestifying witness inadmissible unless the witness is unavailable and was previously subject to cross-examination by the defendant. (Crawford v. Washington (2004) 541 U.S. 36, 59 & fn. 9 (Crawford).) In the Geier decision, relied upon by the trial court in this case, the California Supreme Court applied Crawford and concluded that a laboratory report and notes containing results of DNA testing were not testimonial because they reflected contemporaneously-recorded results of facially-neutral scientific testing. Accordingly, the results could be conveyed through testimony by a laboratory supervisor without violating the confrontation clause. (Geier, supra, 41 Cal.4th at pp. 602-604, citing Davis v. Washington (2006) 547 U.S. 813, 817 (Davis).)
In its latest decision under Crawford, rendered after trial in this case, the United States Supreme Court held that certificates of forensic drug analysis were testimonial under the confrontation clause because they were formally sworn, supplied proof of a fact, and 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."`" (Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 2532; 174 L.Ed.2d 314, 321] (Melendez-Diaz), quoting Crawford, supra, 541 U.S. at p. 52.)4 Melendez-Diaz undercut the rationales underlying the Geier decision and casts doubt upon the trial court's reliance on the business records exception to admit the laboratory reports at issue, holding that statements in official records produced for use at trial or records of a business whose "regularly conducted business activity is the production of evidence for use at trial" may only be admitted subject to the demands of the confrontation clause. (Melendez-Diaz, supra...
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