State v. Campbell, 20050326.

• Decision Date: 27 July 2006
• Docket Number: No. 20050337.,No. 20050326.,No. 20050338.,20050326.,20050337.,20050338.
• Citation: 719 N.W.2d 374,2006 ND 168
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Billie Jo CAMPBELL, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Thomas David Pinks, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 374

719 N.W.2d 374

2006 ND 168

STATE of North Dakota, Plaintiff and Appellee v. Billie Jo CAMPBELL, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee v. Thomas David Pinks, Defendant and Appellant.

No. 20050326.

No. 20050337.

No. 20050338.

Supreme Court of North Dakota.

July 27, 2006.

Kent M. Morrow (on brief), Bismarck, N.D., for defendant and appellant Billie Jo Campbell.

Michael R. Hoffman (argued), Bismarck, N.D., for defendant and appellant Thomas David Pinks.

Ladd R. Erickson (argued), State's Attorney, Washburn, N.D., for plaintiffs and appellees.

Robert P. Bennett, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., as an amicus curiae.

KAPSNER, Justice.

[¶ 1] In these consolidated cases, Thomas Pinks appeals from a judgment of conviction for being in actual physical control of an automobile while under the influence of alcohol or other drugs and possession of marijuana paraphernalia, and Billie Campbell appeals from a judgment of conviction for possession of marijuana and marijuana paraphernalia. Both claim the admission of a state crime laboratory report violated their Sixth Amendment right to confrontation because the report was a testimonial statement under the holding of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Since the resolution of this case makes it unnecessary to decide whether the report is a testimonial statement, we determine the prudent course is not to decide an unnecessary question. Because Pinks and Campbell failed to avail themselves of their opportunity to subpoena the author of the state crime laboratory report, they have waived any potential Confrontation Clause violation. We affirm the trial court's judgments entered on jury verdicts.

I

[¶ 2] In mid-January 2005, Pinks and Campbell were confronted about being drug users by a barkeep at the Lewis and Clark Saloon in Washburn. A heated dispute ensued. There was testimony that bar glasses were thrown and a chair was broken over the bar. The proprietor of the saloon called the police. Pinks and Campbell left the scene in a Blazer with its rear window frosted over. The police followed and stopped the Blazer but were unable to confirm who was driving the vehicle because of the frosted windows. When the police officers reached the vehicle, they noticed Pinks was in the front passenger seat and Campbell was in the rear seat. The officer asked who had been the driver. Both stated the driver had run away before the officer arrived. The officer stated that was impossible because there was no tracks in the snow and he did not notice anyone leave the vehicle during his pursuit. Pinks explained the driver jumped out while the vehicle was moving and he had to reach over, hit the brakes, put the vehicle in park, and shut off the engine.

[¶ 3] During the stop, one of the officers noticed a pipe in the front part of the vehicle, a pipe of the type the officer knew was typically used to smoke marijuana. The officer determined Pinks must have thrown it there. Pinks and Campbell were arrested and transported to the police station in separate cars. During a search of the backseat of the patrol car that transported Campbell, officers found a bag they believed contained marijuana residue. Other residue believed to be marijuana was found in one of Campbell's coat pockets. Pinks was charged with being in actual physical control of an automobile while under the influence of alcohol, criminal mischief, and possession of marijuana paraphernalia. Campbell was charged with possession of marijuana and marijuana paraphernalia.

[¶ 4] At trial, the State relied on a certified report from the state crime laboratory. The report stated the evidence seized from Pinks and Campbell was marijuana. Both Pinks and Campbell objected to the introduction of the report into evidence arguing the report violated their constitutional right to confrontation because the forensic scientist who authored the report did not testify. Neither party subpoenaed the author of the report.

[¶ 5] After receiving the report into evidence, a jury convicted Campbell of all charges. Pinks was found guilty for possession of drug paraphernalia and being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or other drugs, and acquitted of the criminal mischief charge. On appeal, both Pinks and Campbell raise the single issue of whether the district court erred in admitting the state crime laboratory report in violation of their constitutional right to confront their accusers.

II

[¶ 6] The Confrontation Clause 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. Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo. State v. Blue, 2006 ND 134, ¶ 6. As we recognized in Blue, the United States Supreme Court has redefined the federal right to confrontation. Id. at ¶ 7. In Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held the admission of out-of-court testimonial statements in criminal cases is precluded, unless, when the witness is unavailable to testify, the accused has had a prior opportunity to cross-examine the declarant. Without adopting a precise definition for what constitutes a testimonial statement, the court recognized that testimony means a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (citing definition of testimony from 1 N. Webster, An American Dictionary of the English Language (1828)).

[¶ 7] In Blue, 2006 ND 134, ¶ 9, we noted the Crawford court's various formulations defining testimonial statements. Testimonial statements could refer to three classes of statements:

ex parte in-court testimony or its functional equivalent, which includes such things 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. . . . out-of-court statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. . . . The final class described by the Supreme Court is comprised of testimonial statements 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. (citations and quotation marks omitted).

[¶ 8] We also recognized that Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) gave further guidance regarding the distinction between testimonial and nontestimonial statements.

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.

Blue, at ¶ 11 (citing Davis, 126 S.Ct. at 2273-74). We stated that whether an individual was acting as a witness and in essence "testifying" should be determined by looking to the surrounding circumstances of when a report is made, the nature of the report given, the level of formality when making a report, and the purpose of the report. Id. (citing Davis, 126 S.Ct. at 2276-77).

[¶ 9] In this case, the forensic scientist's report bears testimony in the sense that it is a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (citing definition of testimony from 1 N. Webster, An American Dictionary of the English Language (1828)). The report was signed by a state forensic scientist in his official capacity, written on letterhead from the attorney general's office, crime laboratory division, and created for purposes of providing evidence under N.D.C.C. § 19-03.1-37(4). The report was created for the purpose of establishing the content of the residue found in the pipe, bag, and Campbell's coat pocket, and was the primary evidence offered to establish the seized property contained marijuana. This procedure is authorized by statute.

[¶ 10] Section 19-03.1-37(4), N.D.C.C., provides:

In all prosecutions under this chapter, chapter 19-03.2, or chapter 19-03.4 involving the analysis of a substance or sample thereof, a certified copy of the analytical report signed by the director of the state crime laboratory or the director's designee must be accepted as prima facie evidence of the results of the analytical findings.

This statute acts as a substitute for the appearance of a witness who would testify: "I am the director of the state crime laboratory or the director's designee. This substance was analyzed and it was determined to be marijuana."

[¶ 11] The certified report certainly has indicia of a testimonial statement in light of Crawford and Davis. To date, courts are split as to whether a lab report such as the one at issue here is testimonial.¹ However, because of our resolution of this case, we need not decide that question today because, even assuming the report is testimonial, no Sixth Amendment violation can exist where a defendant voluntarily does not avail himself of the opportunity to confront a witness. City of Las Vegas v. Walsh, 124 P.3d 203, 209 (Nev.2005).

[¶ 12] Section 19-03.1-37(5), N.D.C.C., provides certain procedural safeguards to protect an accused's confrontational rights:

Notwithstanding any statute or rule to the contrary, a defendant who has been found to be indigent by the court in the...