State v. Belvin

• Decision Date: 01 May 2008
• Docket Number: No. SC06-593.,SC06-593.
• Citation: 986 So.2d 516
• Parties: STATE of Florida, Petitioner, v. Bruce BELVIN, Respondent.
• Court: Florida Supreme Court

986 So.2d 516

STATE of Florida, Petitioner, v. Bruce BELVIN, Respondent.

No. SC06-593.

Supreme Court of Florida.

May 1, 2008.

Rehearing Denied July 8, 2008.

Bill McCollum, Attorney General, Tallahassee, FL, and Celia Terenzio, Assistant Attorney General, Bureau Chief, and James J. Carney and Richard Valuntas, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.

Richard W. Springer and Catherine Mazzullo of Richard W. Springer, P.A., Palm Springs, FL, for Respondent.

QUINCE, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006). In its decision the district court ruled upon the following question, which was certified to be of great public importance:

DOES ADMISSION OF THOSE PORTIONS OF THE BREATH TEST AFFIDAVIT PERTAINING TO THE BREATH TEST OPERATOR'S PROCEDURES AND OBSERVATIONS IN ADMINISTERING THE BREATH TEST CONSTITUTE TESTIMONIAL EVIDENCE AND VIOLATE THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE IN LIGHT OF THE UNITED STATES SUPREME COURT'S HOLDING IN CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004)?

Id. at 1054. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow we approve the decision of the Fourth District and answer the certified question in the affirmative.

FACTUAL AND PROCEDURAL HISTORY

Bruce Belvin was arrested for driving under the influence (DUI). At a non-jury trial in county court, the breath test technician, Rebecca Smith, who administered the breath test and prepared the breath test affidavit, did not testify. The breath test affidavit was admitted over Belvin's objections that the technician should be present and subject to cross-examination. Belvin appealed his conviction and sentence to the circuit court arguing the failure to have the breath technician testify in person at trial violated his right to confrontation as espoused in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The circuit court affirmed the conviction and ruled that the breath test affidavit was not testimonial in nature and that Crawford did not preclude its admission.

Belvin next sought certiorari review in the Fourth District Court of Appeal, which found admission of certain portions of the breath test affidavit during Belvin's criminal trial violated his constitutional right to confrontation under Crawford. The district court noted that breath test affidavits are usually prepared by law enforcement agencies for use in criminal trials or driver's license revocation proceedings. See Belvin, 922 So.2d at 1050-51. Thus, the court opined that such affidavits qualify as 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. Thus, the Fourth District remanded the cause for a new trial and certified the question to this Court for our review.

DISCUSSION

The State first contends breath test affidavits are not testimonial and that technician Smith's breath test affidavit in this case was admissible under Crawford. Conversely, Belvin argues the breath test affidavit pertaining to the breath test operator's procedures and observations are testimonial evidence. Thus, the affidavit is inadmissible under Crawford. We will first address whether breath test affidavits are testimonial to determine whether technician Smith's breath test affidavit in this case was admissible under Crawford.

In order to introduce breath test results as evidence in a DUI prosecution, the State must first present evidence that the test was performed substantially in accordance with approved methods, that is, by a person trained and qualified to conduct it, on an approved machine that has been tested and inspected. See State v. Donaldson, 579 So.2d 728 (Fla.1991). Sections 316.1934(5) and 90.803(8), Florida Statutes (2007), provide for the introduction of affidavits containing the necessary evidentiary foundation as a public records exception to the hearsay rule. Such an affidavit is admissible without further authentication and is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath of a defendant. § 316.1934(5), Fla. Stat. The affidavit must contain the following:

(a) The type of test administered and the procedures followed;

(b) The time of the collection of the blood or breath sample analyzed;

(c) The numerical results of the test indicating the alcohol content of the blood or breath;

(d) The type and status of any permit issued by the Department of Law Enforcement which was held by the person who performed the test; and

(e) If the test was administered by means of a breath testing instrument, the date of performance of the most recent required maintenance on such instrument.

Id. The statute also provides that the law enforcement agency shall provide a form for the affidavit and that the person tested may subpoena the person who administered the test as an adverse witness at a civil or criminal trial. Id.

Section 90.803(8), Florida Statutes (2007), is the public records and reports exception to the hearsay rule. It excludes from hearsay the following:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

§ 90.803(8), Fla. Stat. An item of evidence that meets the requirements of this statutory provision may however be excludable for other reasons. The introductory language to section 90.803 states that items satisfying the requirements of this exception are "not inadmissible" merely because the evidence is hearsay. An item of evidence, such as the affidavit involved in this case, may be inadmissible for other reasons, including that the use of the affidavit would violate the defendant's constitutional right of confrontation. The Confrontation Clause of 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. Amend. VI. The right guaranteed by this clause of the Sixth Amendment differs from the kind of protection that is afforded by state evidence rules governing the admission of hearsay. See generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was modified by the Supreme Court in Crawford v. Washington. Before Crawford, the Confrontation Clause issue was controlled by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Roberts the Court said that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. This test focused on the reliability of the statement. As explained in Roberts, a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore "particularized guarantees of trustworthiness." Id.

However, in Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay and held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if "testimonial" evidence is at issue, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68, 124 S.Ct. 1354. "Only [testimonial statements] cause the declarant to be a `witness' within the meaning of the Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Id.

Thus, we must initially determine whether the breath test affidavit at issue in the instant case contains testimonial statements. While Crawford did not establish a precise definition for the term "testimonial," the Supreme Court provided some guidance, holding that, at a minimum, statements are testimonial if the declarant made them at a "preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations." Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Following Crawford, the Supreme Court established a general rule for determining whether statements are testimonial or nontestimonial:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. at 822, 126 S.Ct. 2266. The distinction rests on the primary purpose of the statement.

Applying the rationales of Davis and Crawford to the instant case, we...