State v. Hancock

• Decision Date: 01 July 1993
• Citation: 317 Or. 5,854 P.2d 926
• Parties: STATE of Oregon, Respondent on Review, v. Diana Lynn HANCOCK, Petitioner on Review. CC 900714; CA A65081; SC S39185.
• Court: Oregon Supreme Court

Page 926

854 P.2d 926

317 Or. 5

STATE of Oregon, Respondent on Review, v. Diana Lynn HANCOCK, Petitioner on Review.

CC 900714; CA A65081; SC S39185.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Nov. 3, 1992.

Decided July 1, 1993.

Guy B. Greco, Newport, argued the cause and filed the petition for petitioner on review.

Douglas F. Zier, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

PETERSON, Justice.

The question in this case is whether defendant's state and federal confrontation rights were violated by the admission of a laboratory report pursuant to ORS 475.235. That statute provides in part:

"(3) 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.

"(4) Notwithstanding any statute or rule to the contrary, the defendant may subpoena the criminalist to testify at the preliminary hearing and trial of the issue at no cost to the defendant."

Defendant claims that the statute, on its face, "violates the State and Federal Confrontation Clauses," because the exhibit is admissible without the testimony of the person who performed the tests. We hold that the statute does not violate either constitutional provision.

Defendant was charged with Delivery of Marijuana for Consideration, a Class B felony. ORS 475.992(2)(a). At trial, the state produced evidence that, on December 19, 1989, defendant drove two men--her boyfriend Terry and an undercover drug informant named Smith--to a residence in Lincoln City. Smith gave Terry $10 to purchase $5 worth of marijuana (the remaining $5 to be for Terry's use). Terry entered the residence and returned with a small quantity of leafy green material that appeared to Smith to be marijuana. He gave Smith a portion in a small plastic bag. Smith testified that he subsequently marked the bag with his initials and the date and transferred the bag to Detective Groat. Groat also marked the bag. The bagged substance, still bearing the markings, was received in evidence.

Groat testified that he filled out a receipt, placed the evidence in an evidence locker at the Lincoln City Police Department, filled out various forms, sent the evidence to the Oregon State Police Crime Laboratory for testing, and later received from the laboratory a report that identified the substance as marijuana. An Oregon State Police officer personally returned to Groat the bagged substance that had been sent to the laboratory. Groat, who had years of training and experience in drug detection, testified that, in his opinion, the substance was marijuana.

Pursuant to ORS 475.235(3), the state also offered in evidence the crime laboratory report. The report did not contain a description of the bag that the laboratory had received (i.e., a plastic bag with Smith's and Groat's markings and a date on it). Instead, it identified the agency number, the case number, and the suspects' names, "Diane" (defendant) and "Terry." The report reads:

"On December 27, 1989, this crime laboratory received, from Detective Groat, the following:

"Exhibit 1--A small plastic bag containing less than one gram of green vegetable material. Analysis of this Exhibit reveals that it is Marijuana, a controlled substance."

Defendant objected to the report, arguing that its admission violated her right, under both the state and federal constitutions, to confront the witnesses against her. ¹ She also asserted that the state had failed to establish the connection between the bag of leafy green material in evidence and the "green vegetable matter" analyzed in the report. The trial court overruled the objections, and a jury found defendant guilty.

On appeal, defendant challenged the admission of the report as violative of her state and federal confrontation rights. She also asserted that the chain-of-custody evidence was inadequate to support admission into evidence of the bag or information concerning its contents. On the confrontation issue, she argued that the state had not satisfied the two-part test established by Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), because it failed to show that the criminalist was unavailable and that the report possessed "adequate indicia of reliability." The Court of Appeals affirmed the trial court. State v. Hancock, 111 Or.App. 92, 825 P.2d 648 (1992). After noting that a declarant's unavailability is not always a prerequisite for the admission of hearsay evidence in a criminal trial, the Court of Appeals determined that the laboratory report was sufficiently trustworthy and held that the report's admission pursuant to ORS 475.235(3) did not violate either the state or federal constitution. 111 Or.App at 96, 98, 825 P.2d 648. We affirm the decision of the Court of Appeals, but for different reasons.

We consider defendant's subconstitutional argument first. See Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981) (if a state provides the protection that a defendant seeks under its own laws, it is not necessary to reach a constitutional issue). Defendant is correct that the state must prove that the marijuana analyzed by the laboratory is the vegetable matter that was seized by Smith. In the light of the testimony regarding the chain of custody and of the report's identification of the relevant names and numbers, we are satisfied that the trial court did not err in ruling that the report adequately was linked to the bag of marijuana in evidence so that a trier of fact could conclude that the material purchased for Smith by Terry was the same material that was tested and identified by the laboratory. ² We turn, then, to the confrontation issue.

Under ORS 475.235(3), it was unnecessary for the criminalist to appear at trial and testify that the leafy green material tested at the laboratory was marijuana; instead, that declaration was made through a written and certified report. The statute has two aspects: one concerns authentication of the record; the other enlarges the hearsay exception. The state acknowledges that, because ORS 475.235(3) permits an out-of-court statement to be offered to prove the truth of the matter asserted, it authorizes the use of hearsay. OEC 801(3). ³ However, OEC 802 provides:

"Hearsay is not admissible except as provided in ORS 40.450 to 40.475 or as otherwise provided by law." (Emphasis added.)

The criminalist's report is admissible over a hearsay objection, because its admission is "as otherwise provided by law." ORS 475.235(3).

We turn to the question whether admitting the report under ORS 475.235 violated defendant's state or federal constitutional right to confront the witnesses against her. We first consider the matter under Article I, section 11, of the Oregon Constitution. The specific constitutional question presented is whether the statute diminishes the right to confront the witness and, more specifically, the two rights protected by the constitutional guarantee: the right to cross-examine and the right to demonstrate the witness' demeanor "so that the credibility of the witness is displayed in the courtroom." State v. Herrera, 286 Or. 349, 353-54, 594 P.2d 823 (1979).

In State v. Mai, 294 Or. 269, 274-75, 656 P.2d 315 (1982), this court held that "it is doubtless permissible to establish reasonable procedures which must be followed in order [for a defendant] to exercise a right granted by the constitution. The procedures must not, however, result in unfairness." (Citations omitted.) (The statutory requirement upheld in Mai was the requirement that a defendant disclose to the state the names and addresses of witnesses that the defendant intends to call at trial, in default of which, under some circumstances, the defendant may not call those witnesses.) We believe that ORS 475.235(3) and (4) comprise a similarly "reasonable procedure" that must be followed in order for a defendant to exercise a constitutional right--in this case, the confrontation right.

A factual scenario helps to make our point. Suppose that the district attorney said to a defendant, before trial, "Must I bring in my criminalist? I'll do it, if you wish. But you know what the contents of his reports are. You know if you intend to cross-examine him or not. Here's what I propose: If you want to cross-examine the criminalist, I'll have him here. If you don't, will you stipulate to my using the report instead? [The stipulation will have to cover chain of custody, authenticity, and hearsay use of the substance of the report.] That'll save us some time and let you concentrate on other areas of the case." Defense counsel agrees, and the report is received into evidence without the criminalist's being called. From our experience and from the legislative history, we know that such scenarios frequently occurred before the enactment of ORS 475.235. The legislative history shows that, in 1988 (the year before ORS 475.235 was amended), the Oregon Crime Laboratory received approximately 8,800 subpoenas, but criminalists actually testified in only 10 percent of the cases. Minutes, House Judiciary Crime and Corrections Subcommittee, Jan. 19, 1989, Exh C.

This statute is a legislative decision to make what amounts to the same offer on behalf of the prosecutor in every such case. A defendant is told by the statute that the state will let the defendant select the method by which the state will prove the nature of the controlled substance that is involved in the case. The statute's offer to allow the defendant to procure the criminalist as a witness at no charge is just another way of saying that the state...