State v. Crow, 79,287

• Decision Date: 29 January 1999
• Docket Number: No. 79,287,79,287
• Citation: 266 Kan. 690,974 P.2d 100
• Parties: STATE of Kansas, Appellant, v. Jimmy Gale CROW, Appellee.
• Court: Kansas Supreme Court

Page 100

974 P.2d 100

266 Kan. 690

STATE of Kansas, Appellant, v. Jimmy Gale CROW, Appellee.

No. 79,287.

Supreme Court of Kansas.

Jan. 29, 1999.

Syllabus by the Court

1. Appeals of questions reserved by the State will be entertained where they involve issues of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.

2. Interpreting the constitutionality of a statute is a question of law where the court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature.

3. The right of confrontation of witnesses in a criminal case is established by the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights, which establish substantially the same requirement.

4. The fundamental right of a defendant to confront a witness in a criminal trial is not absolute and has exceptions where necessary to further an important public policy.

5. Kansas construes its own rules of evidence and is not bound or compelled to adopt any construction from a case construing the Federal Rules of Evidence.

6. The procedure set out in K.S.A.1996 Supp. 22-3437 for allowing the admissibility of forensic reports and certificates is limited to named laboratories. It requires that a certificate be signed under oath by the party making the analysis which attests to the result of the analysis.

7. The certificate to be prepared pursuant to K.S.A.1996 Supp. 22-3437(2) is required to contain statements indicating the type of analysis performed; the result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber's training or experience to perform the analysis; the nature and condition of the equipment used; and the certification and foundation requirements for admissibility of breath test results, when appropriate.

8. Under K.S.A.1996 Supp. 22-3437(3), a proffered certificate shall be admitted into evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality, or quantity of the substance submitted to the laboratory for analysis or the alcohol concentration of a blood or breath sample will be contested at trial.

9. K.S.A.1996 Supp. 22-3437 is construed to be constitutional so long as the accused has the right to determine whether the contents of a report concerning forensic examinations will be contested at trial. It is not unconstitutional to require this right to be affirmatively exercised and to require that the grounds of the objection have an indicia of merit, not be interposed for delay, and result in a valid issue being contested at trial.

Joe Shepack, county attorney, argued the cause and was on the brief for appellant.

Janine Cox, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellee.

Paige A. Nichols, of Monnat & Spurrier, of Wichita, and James F. Vano, of Overland Park, were on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.

Melanie S. Pfeifer, assistant attorney general, Jimmy Chen, legal intern, and Carla J. Stovall, attorney general, were on the brief for amicus curiae Kansas Attorney General.

LARSON, J.

The State of Kansas appeals on a question reserved the trial court's decision that K.S.A.1996 Supp. 22-3437 unconstitutionally deprives a criminal defendant of the right to confront witnesses guaranteed by the Sixth Amendment to the United States Constitution.

K.S.A.1996 Supp. 22-3437 allows a report and certificate by the person performing a forensic analysis to be admitted into evidence without testimony if the statutory procedure is followed and the opposing party does not question the conclusions of the report.

Three issues are raised: (1) Should we accept jurisdiction? (2) Do the 1996 amendments to 22-3437 apply to a crime committed in 1995? (3) If we consider the question reserved, does K.S.A.1996 Supp. 22-3437 unconstitutionally deny a criminal defendant the right to confrontation?

Factual statement

Jimmy Gale Crow was stopped by a Kansas Highway Patrolman in April 1995 and charged with possession with intent to sell, deliver, or distribute approximately 100 pounds of marijuana contrary to K.S.A.1996 Supp. 65-4163, a level 2 felony.

Due to Crow's arrest in another jurisdiction after he was released on bond in Kansas, his preliminary hearing was not held until November 12, 1996.

On November 20, 1996, the State filed notice of intent to proffer a forensic lab report into evidence at trial showing that the vegetation tested was marijuana and its active ingredient was tetrahydrocannabinol (THC), pursuant to K.S.A.1996 Supp. 22-3437.

Crow did not object to the State's motion on the ground the conclusions of the report would be contested at trial. Rather, he asserted that the provisions of K.S.A.1996 Supp. 22-3437 violated his rights under Section 10 of the Kansas Constitution Bill of Rights and the Sixth Amendment to the United States Constitution to meet and confront the witnesses against him.

The trial court ruled that K.S.A.1996 Supp. 22-3437 violated Crow's Sixth Amendment right to confront witnesses and refused the State's attempt to offer the lab reports without testimony of the preparer. The trial court noted the State reserved the issue of the constitutionality of the statute for appeal.

Crow subsequently reached a plea agreement with the State, pled guilty, and was convicted. The State properly appealed the question reserved.

Jurisdiction

Although K.S.A. 22-3602(b)(3) provides for appeals to the Kansas Supreme Court as a matter of right "upon a question reserved by the prosecution," we held in State v. Kopf, 211 Kan. 848, 508 P.2d 847 (1973), that appeals will not be entertained merely to demonstrate whether error has been committed by the trial court in its rulings adverse to the State. We generally only accept appeals on questions reserved which involve issues of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes. State v. Woodling, 264 Kan. 684, Syl. p 3, 957 P.2d 398 (1998).

The issue raised here appears to be of statewide interest. It is likely to be considered in a large number of prosecutions where an element of a crime or important area of proof involves some type of testing or laboratory determination. In addition, the issue would have been appealable under K.S.A. 22-3601(b)(2) as an instance where a statute of this state has been declared unconstitutional had the issue not been mooted by Crow's guilty plea. The question reserved meets the statutory requirements for our court to consider and decide.

Do the 1996 amendments to 22-3437 apply to the prosecution of a crime allegedly committed in 1995?

This argument was not the basis of Crow's objection to the constitutionality of the statute at the trial court. We have held that "[a]n issue not presented to the trial court will not be considered for the first time on appeal." State v. Alderson, 260 Kan. 445, Syl. p 7, 922 P.2d 435 (1996). However, Crow now contends the proffer made under a statute amended and effective July 1, 1996, does not apply to the prosecution of a crime allegedly committed in 1995. We will not decline to consider the question reserved, as this procedural argument is clearly not correct.

We held in State v. Nunn, 244 Kan. 207, Syl. p 9, 768 P.2d 268 (1989), that "[a]s related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is tried and punished." See State v. Noah, 246 Kan. 291, 788 P.2d 257 (1990). The statute in issue here is clearly procedural. The 1996 provisions of 22-3437 apply to the crime that was allegedly committed in 1995.

We hold Crow's argument on appeal that K.S.A.1996 Supp. 22-3437 is not applicable to the present case has no legally justifiable basis.

Does K.S.A.1996 Supp. 22-3437 deny a criminal defendant his or her Sixth Amendment right to confrontation?

Standard of review

Interpretation of a statute is a question of law over which our court's review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).

"A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. p 2, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997).

See State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979), where we held that if there is any reasonable way to construe a statute as constitutionally valid, we should do so.

The statute in issue

K.S.A.1996 Supp. 22-3437 reads in its entirety as follows:

"(1) In any hearing or trial, a report concerning forensic examinations and certificate of forensic examination executed pursuant to this section shall be admissible in evidence if the report and certificate are prepared and attested by a criminalist or other employee of the Kansas bureau of investigation, Kansas highway patrol or any laboratory of the federal bureau of investigation, federal postal inspection service, federal bureau of alcohol, tobacco and firearms or federal drug...