State v. Harris

• Decision Date: 18 December 2013
• Docket Number: D100514T; A149158.
• Citation: 260 Or.App. 154,316 P.3d 405
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Marisa Ann HARRIS, Defendant–Appellant.
• Court: Oregon Court of Appeals

260 Or.App. 154

316 P.3d 405

STATE of Oregon, Plaintiff–Respondent,

v.Marisa Ann HARRIS, Defendant–Appellant.

D100514T; A149158.

Court of Appeals of Oregon.

Submitted Aug. 21, 2013.

Decided Dec. 18, 2013.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jake J. Hogue, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

This case requires us to determine whether, at a probation revocation hearing, defendant had a federal due process right to confront the lab technician who prepared two urinalysis reports indicating that defendant had consumed alcohol. The state introduced the urinalysis results through the testimony of defendant's probation evaluator. Over defendant's objection, the trial court concluded that the state did not need to produce the lab technician for cross-examination, and it found that defendant had violated her probation. For the following reasons, we reverse and remand.

The facts are not in dispute. Defendant had been sentenced to a term of probation that prohibited her from consuming alcohol. An employee of Evaluation Services—the organization in charge of monitoring defendant's compliance—required her to submit a urine sample. The sample was sent to Sterling Reference Laboratories (Sterling) in Tacoma, Washington. Sterling returned a urinalysis report stating that defendant's sample had tested “positive” for “ethylglucuronide (ETG),” “negative” for nitrite, and “normal” for creatinine and pH. It also contained a “Certification” that consisted of the words “Certified True and Complete,” beneath which lay the signature of Ryan Jorgensen, who was identified as an “MS Certifying Scientist.” Defendant denied consuming alcohol and asked for a confirmatory test; Sterling retested the same sample and issued an “amended report.” Unlike the first, it indicated that the analysis was performed by “High Performance Liquid Chromatography/ Tandem Mass Spectrometry.” Also unlike the first, it specified that defendant had tested “positive” for “Ethyl Glucuronide” in the amount of “3126 ng/mL” and “Ethyl Sulfate” in the amount of “1815 ng/mL.” The second urinalysis report contained the same “Certification” as the first.

The trial court held a hearing to determine whether defendant had violated her probation. At the outset of that hearing, defense counsel announced that defendant would deny the allegation of alcohol consumption. The state's only witness was defendant's probation “evaluator”; she stated that both of the tests indicated alcohol usage. Defense counsel objected to the evaluator's testimony, arguing that the state was required to produce the lab technician who performed the tests to testify about the results. The trial court immediately agreed to reschedule the hearing to give the state sufficient time to produce the technician. The state declared that two weeks would give it enough time to do so.

Approximately two weeks later, the court held a second hearing. The state began by noting that it had reviewed State v. Wibbens, 238 Or.App. 737, 243 P.3d 790 (2010), and concluded that it did not need to produce the lab technician to testify. The court asked defense counsel whether he wished to subpoena the technician; defense counsel replied that he believed it was the state's duty to make the technician available to testify. The court then proceeded to hear the testimony of defendant's probation evaluator. During that testimony, the state moved to admit both of the reports containing the urinalyses results. Defense counsel objected, citing the Fourteenth Amendment to the United States Constitution and Wibbens.

Without ruling on defendant's objection, the court asked the evaluator how the chain of custody worked with regard to the urine samples. She stated that an employee of Evaluation Services fills out a form requesting the test, collects the urine sample in a bottle, and places a signed and dated security seal over the bottle, which is then sealed in a bag along with the request form and mailed to Sterling. The request form was admitted into evidence; it included a section in which defendant provided her consent to test the sample for alcohol and an acknowledgment by defendant that it was her urine sample that was submitted. After hearing the evaluator's testimony about the collection procedures, defense counsel argued that defendant was being denied a meaningful opportunity to refute the state's evidence and that the state lacked good cause for not producing the lab technician to testify. The court then overruled the objection.

On cross-examination, the evaluator stated that she was not present at the taking of defendant's sample and that someone else in her office had handled the collection of defendant's sample and its submission to Sterling. She also testified that her assertion that the standard collection procedure had been adhered to in defendant's case was based on her review of the information contained in the request form. At the first hearing, the evaluator stated that the two tests were “positive for alcohol,” but provided no information about how she had derived that conclusion from the information presented in the urinalysis reports.

The court concluded that defendant was in violation of her probation terms. In a subsequent judgment, the court ordered defendant to serve 21 days in jail, extended the duration of her probation, and assessed a fine and attorney fees. This timely appeal followed.

The two urinalysis results and the evaluator's testimony about those results were the only pieces of evidence to support the finding that defendant had consumed alcohol, and it is the admission of that evidence that defendant assigns error to. Defendant's sole contention in this appeal is that the admission of those tests and testimony violated her right to confront adverse witnesses under the Fourteenth Amendment. We review for legal error. See State v. Johnson, 221 Or.App. 394, 400–06, 190 P.3d 455,rev. den.,345 Or. 418, 198 P.3d 942 (2008) (reviewing admission of hearsay evidence over a defendant's due process objection at a probation revocation proceeding for errors of law).

“In a probation violation proceeding, a probationer is entitled to certain due process protections, including the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). Less process is due at a revocation hearing than during a criminal trial, and the trial court at a probation revocation hearing may consider documentary evidence that does not meet usual evidentiary requirements. For example, the trial court in a revocation proceeding may consider, where appropriate, conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.”

Id. at 400–01, 190 P.3d 455 (citations and internal quotation marks omitted). In this context, due process is a “flexible concept and confrontation may give way where other evidence provides an adequate alternative * * *.” Wibbens, 238 Or.App. at 741, 243 P.3d 790. Accordingly, this court has adopted a balancing test, “which weighs the probationer's interest in confrontation against the government's good cause for denying it.” Id. The factors in that analysis include: “(1) the importance of the evidence to the court's finding; (2) the probationer's opportunity to refute the evidence; (3) the difficulty and expense of obtaining witnesses; and (4) traditional indicia of reliability borne by the evidence.” Johnson, 221 Or.App. at 401, 190 P.3d 455. The first two factors are employed to assess the strength of a defendant's interest in confrontation, which is then weighed against the state's good cause for not producing the declarant, as measured by the second two factors. See United States v. Martin, 984 F.2d 308, 310–14 (9th Cir.1993) (conducting analysis). If, on balance, the state's good cause outweighs the defendant's interest in confrontation, then confrontation is not constitutionally required.

We have applied that balancing test on several occasions. In Johnson, the defendant's probation terms required that he report to his probation officer, abide by the officer's directions, and keep the officer informed of his current address. 221 Or.App. at 396, 190 P.3d 455. The state sought to revoke the defendant's probation for violations of those terms. When the probation officer did not appear at a revocation hearing, the state offered a sworn affidavit prepared by the officer. The affidavit stated that the defendant had been involved in a domestic altercation with his wife, that he had been instructed to report to the officer and had failed to do so, and that the officer was unaware of the defendant's whereabouts. The state also introduced evidence about the contents of the defendant's probation file, which had been prepared by the probation officer. A probation supervisor testified at the hearing; he stated that he had been informed by a different supervisor that the defendant's probation officer was not available to testify because he was ill that day and that he had been stuck in traffic on the day that the hearing had previously been scheduled.

In analyzing the defendant's due process argument, we first noted that “[w]eighing against admission are the facts that the challenged evidence was important to the state's case, and the state made only a perfunctory showing as to why the probation officer did not appear to testify on two consecutive hearing days.” Id. at 405, 190 P.3d 455. We then observed that several factors “militate[d] strongly” in favor of admitting the evidence. Id. “First, the evidence bore several traditional earmarks of reliability. Not only was the evidence admissible...