State v. Hancock

• Decision Date: 13 May 1992
• Citation: 825 P.2d 648,111 Or.App. 92
• Parties: STATE of Oregon, Respondent, v. Diana Lynn HANCOCK, Appellant. 900714; CA A65081.
• Court: Oregon Court of Appeals

Page 648

825 P.2d 648

111 Or.App. 92

STATE of Oregon, Respondent, v. Diana Lynn HANCOCK, Appellant.

900714; CA A65081.

Court of Appeals of Oregon.

Argued and Submitted Aug. 29, 1991.

Decided Jan. 22, 1992.

Reconsideration Denied May 13, 1992.

Guy B. Greco, Newport, argued the cause and filed the brief for appellant.

Douglas F. Zier, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Defendant appeals her conviction for delivery of marijuana for consideration. ORS 475.992(2)(a). She makes numerous assignments of error. We address only her claims that the trial court erred in overruling her objection to the admission of a report prepared by the Oregon State Police Crime Detection Laboratory (laboratory) and that the trial court erred by failing to give her requested instructions on accomplice testimony. We affirm.

On December 19, 1989, Smith was employed by the Lincoln City Police Department as an undercover agent. Early that evening, he went to a local bar to purchase marijuana. At the bar, he contacted a person known to him as "Terry," who agreed to buy some marijuana with Smith. The two then waited for Terry's girlfriend, whom Smith later identified as defendant. Defendant drove them to a location where Terry left the car and apparently obtained marijuana. After Terry returned, defendant drove to her residence, where Smith and Terry split the marijuana. Defendant denied that she drove Terry or Smith anywhere on December 19, 1989, or that she knew anything about a drug transaction.

ORS 475.235(3) provides:

"In all prosecutions under ORS 475.005 to 475.375 and 475.805 to 475.999 involving the analysis of a controlled substance or sample thereof, a certified copy of the analytical report signed by the director of the state police crime detection laboratory or the criminalist conducting the analysis shall be accepted as prima facie evidence of the results of the analytical findings."

Relying on that statute, the state, in its case-in-chief, introduced a laboratory report identifying as marijuana the green vegetable material in evidence. The statute makes the laboratory report self-authenticating and "prima facie evidence of the results of the analytical findings." Admission of the laboratory report is sufficient to prove the controlled substance element for the various listed drug offenses. Defendant contends that admission of the report violated her confrontation rights under the state and federal constitutions, ¹ because the state did not demonstrate that the report's author was unavailable to testify or that the report was sufficiently trustworthy. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State v. Stevens, 311 Or. 119, 140, 806 P.2d 92 (1991); State v. Campbell, 299 Or. 633, 648, 705 P.2d 694 (1985).

In Ohio v. Roberts, supra, the Court applied a two-part test to determine whether a defendant's confrontation rights had been satisfied. The Court held that the declarant must "[i]n the usual case" be unavailable and the statement must have "adequate indicia of reliability." 448 U.S. at 65-66, 100 S.Ct. at 2539. The test established in Roberts was adopted by the Oregon Supreme Court in State v. Campbell, supra, and applied most recently in State v. Moen, 309 Or. 45, 62, 786 P.2d 111 (1990), and State v. Stevens, supra. Roberts involved the admissibility of the preliminary hearing testimony of a witness not produced at the defendant's subsequent criminal trial. Campbell, Moen and Stevens also involve the admission of a prior out-of-court statement by an unavailable declarant.

However, in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), the Court held that out-of-court statements by a co-conspirator were admissible, even in the absence of a demonstration that the declarant was unavailable to testify at trial. In concluding that unavailability was not necessary in all cases to protect a defendant's confrontation rights, the Court observed:

"[A]n unavailability rule is not likely to produce much testimony that adds anything to the 'truth-determining process' over and above what would be produced without such a rule. * * * Some of the available declarants already will have been subpoenaed by the prosecution or the defense, regardless of any Confrontation Clause requirements. Presumably only those declarants that neither side believes will be particularly helpful will not have been subpoenaed as witnesses. * * * If the government has no desire to call a co-conspirator declarant as a witness, and if the defense has not chosen to subpoena such a declarant, either as a witness favorable to the defense, or as a hostile witness, or for cross-examination under Federal Rule of Evidence 806, then it is difficult to see what, if anything, is gained by a rule that requires the prosecution to make that declarant 'available.'

" * * * * *

"Any marginal protection to the defendant by forcing the government to call as witnesses those co-conspirator declarants who are available, willing to testify, hostile to the defense and yet not already subpoenaed by the prosecution, when the defendant himself can call and cross-examine such declarants, cannot support an unavailability rule. We hold today that the Confrontation Clause does not embody such a rule." 475 U.S. at 396, 106 S.Ct. at 1127-28. (Footnotes and citations omitted.)

We agree with the Court's reasoning in Inadi, and conclude that the declarant's unavailability is not a condition for the admission of hearsay evidence in a criminal trial if the evidence has independent significance of its own, there is no showing that cross-examination of the declarant would add anything to the "truth determining process" of the trial and the defendant could have, but failed to, exercise the right to compel the testimony of the declarant. ²

The state was required to disclose the report to defendant before trial. ORS 135.815(3). ORS 475.235(4) provides that, if a defendant wants to challenge the accuracy of a laboratory analysis, "the defendant may subpoena the criminalist to testify at the preliminary hearing and trial of the issue at no cost to the defendant." Had defendant wanted to challenge the accuracy of the report, she could have subpoenaed the analyst for cross-examination, or she could have made the proper application to the court and had the material tested independently before trial. Instead, she chose to do nothing. Under similar circumstances, other jurisdictions with similar statutes have found the unavailability rule unnecessary to protect the defendant's confrontation rights. ISEE State v. Fischer, 459 N.W.2d 818 (N.D.1990); Howard v. United States, 473 A.2d 835 (D.C.App.1984); State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984).

Defendant also contends that the report is not sufficiently trustworthy and should have been excluded for that reason. States have the power to regulate how their laws are carried out. That power includes determining which party should bear the burden of producing evidence in a trial and the form of that evidence. ³ See Patterson v. New York, 432 U.S. 197, 201-202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977). At the House Judiciary Committee hearings relating to the passage of HB 2190, now codified at ORS 475.235(3) and (4), representatives from the Oregon State Police and the Oregon District Attorneys' Association testified that they could not recall any cases of drugs being misidentified by laboratory analysis. The Oregon Criminal Defense Lawyer's Association representative could recall only two cases in which the nature of the drug was disputed. One related only to the type of marijuana present, rather than the presence or absence of the drug. The other related only to identification of the particular isomer of cocaine,...