State v. Johnson
| Decision Date | 01 May 2008 |
| Docket Number | No. SC06-86.,SC06-86. |
| Citation | 982 So.2d 672 |
| Parties | STATE of Florida, Petitioner, v. Lorenzo Cephus JOHNSON a/k/a Lorenzo Ceatus Johnson, etc., Respondent. |
| Court | Florida Supreme Court |
Bill McCollum, Attorney General, Tallahassee, FL, and Robert J. Krauss, Assistant Attorney General, Bureau Chief, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, FL, for Petitioner.
James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Respondent.
This case is before the Court for review of the decision of the Second District Court of Appeal in Johnson v. State, 929 So.2d 4 (Fla. 2nd DCA 2005). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:
DOES THE ADMISSION OF A FLORIDA DEPARTMENT OF LAW ENFORCEMENT LAB REPORT ESTABLISHING THE ILLEGAL NATURE OF SUBSTANCES POSSESSED BY A DEFENDANT VIOLATE THE CONFRONTATION CLAUSE AND CRAWFORD V. WASHINGTON, 541 U.S. 36[, 124 S.Ct. 1354, 158 L.Ed.2d 177] (2004), WHEN THE PERSON WHO PERFORMED THE LAB TEST DID NOT TESTIFY?
Id. at 8-9. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below we approve the decision of the Second District and answer the certified question in the affirmative.
Lorenzo Cephus Johnson1 was charged by information with possession of cocaine, introduction of contraband into a detention facility, obstructing or opposing an officer without violence, and possession of cannabis. During his jury trial in June 2004, the State sought to introduce the result of a Florida Department of Law Enforcement (FDLE) lab test performed by Anna Deakin through her supervisor, James Silbert. The lab test was used to establish the illegal nature of the substances Johnson possessed. Johnson objected and argued that the lab report was inadmissible hearsay and that its admission without the presence of the person who prepared the report violated his Sixth Amendment right to confront his accuser. See Johnson v. State, 929 So.2d 4, 6 (Fla. 2nd DCA 2005). The State explained that Deakin was now an employee of the FBI in Virginia and was unavailable. The State telephoned Deakin, who indicated she was willing to fly down the next morning, but the State took the position that it "was an unreasonable expense and inconvenience" to fly her down for the trial. Id. The trial court admitted the lab report as a business record, and Johnson was found guilty on all charges.
On appeal, Johnson argued the admission of the lab report violated his right to confront his accuser. The district court noted that in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court stated, albeit in dicta, "that certain hearsay statements are by their nature nontestimonial — such as business records." Johnson, 929 So.2d at 7 (citing Crawford, 541 U.S. at 56, 124 S.Ct. 1354). However, in examining the FDLE lab report at issue the district court said such a report, although kept in the regular course of business, was by its nature intended to bear witness against an accused. See Johnson, 929 So.2d at 7. Therefore, the court held an FDLE lab report prepared pursuant to police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record. Id. In so holding the district court relied on Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006), approved, No. SC06-593, ___ So.2d ___, 2008 WL 1901674 , and Shiver v. State, 900 So.2d 615 (Fla. 1st DCA 2005), both of which held breath test affidavits to be testimonial hearsay prepared for use at a trial.
In finding the lab report testimonial hearsay, the district court also analyzed whether the FDLE lab report was admissible under Crawford's two-prong analysis of unavailability of the witness and a prior meaningful opportunity to cross-examine the witness. Because Crawford did not disturb the meaning of unavailability the district court considered pre-Crawford decisions, notably, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in addressing the issue. The court found the State must make a good faith showing of attempting to secure a witness and if there is any remote chance, go to reasonable lengths to secure the witness. See Johnson, 929 So.2d at 8 (citing Roberts, 448 U.S. at 74, 100 S.Ct. 2531). In the instant case, the district court found the State did not go to reasonable lengths to procure Deakin's testimony even though she was able and willing to fly down the next day. Thus, Deakin was not unavailable and this part of the Crawford test was not met. Id.
The district court reasoned that because the State did not establish the witness was unavailable, "we need not address whether Johnson had a prior meaningful opportunity to cross-examine her." Johnson, 929 So.2d at 8. The district court compared Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004), approved, 978 So.2d 149 (Fla. 2008), with Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004), approved, 974 So.2d 340 (Fla.2008), and opined that "[b]ecause Deakin's name did not appear on any discovery the State provided to Johnson, it appears that, exercised or not, Johnson probably had no opportunity even to depose her." Id.
The district court reversed and remanded for a new trial and certified the question to this Court for our review.
The State argues the admission of the FDLE lab report did not violate the Confrontation Clause or Crawford. The State contends the lab report is nontestimonial because it documents the lab procedures and scientific criteria that were followed in determining the composition of a substance. The State argues the report is not the type of testimonial statement of an unavailable witness under Crawford that is at the core of the protection of the Confrontation Clause which requires cross-examination of the statements. Conversely, Johnson argues the lab report is testimonial and its admission as a business record violated his right to confront the preparer of the report under the crucible of cross-examination pursuant to Crawford. Johnson contends the lab report was prepared for litigation and is the functional equivalent of an affidavit submitted instead of testimony from a live witness. Thus, it should be considered testimonial. For the reasons explained below, we agree with Johnson.
In order to address the certified question posed to this Court we must first examine the Confrontation Clause as discussed in Crawford and determine whether the FDLE lab report is testimonial. Second, if the report is testimonial, we must determine whether it is admissible under Crawford, that is, we must decide if the witness was unavailable and whether there was a prior opportunity to meaningfully cross-examine the preparer of the report.
The Sixth Amendment's 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. The United States Supreme Court has held "that this bedrock procedural guarantee applies to both federal and state prosecutions." Crawford, 541 U.S. at 42, 124 S.Ct. 1354 (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). Before Crawford, the standard for determining whether the admission of a hearsay statement against a criminal defendant violated the right of confrontation was controlled by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Roberts, the Supreme Court held that a hearsay statement could be admitted in a criminal trial without violating the right of confrontation if it was shown that the declarant was unavailable and the out-of-court statement bore adequate indicia of reliability. See Roberts, 448 U.S. at 66, 100 S.Ct. 2531. The Supreme Court further held a statement had adequate indicia of reliability if it either fell within a firmly rooted hearsay exception or if it bore "particularized guarantees of trustworthiness." Id.
In Crawford, the Supreme Court dispensed with the reliability analysis set forth in Roberts for testimonial hearsay. The Supreme Court held that testimonial hearsay that is introduced against a defendant violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior meaningful opportunity to cross-examine that witness. The Supreme Court further reasoned that the text of the Confrontation Clause applied to "`witnesses' against the accused — in other words, those who `bear testimony.'" Crawford, 541 U.S. at 51, 124 S.Ct. 1354 (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)). However, the Court "[left] for another day any effort to spell out a comprehensive definition of `testimonial'" but said, "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68, 124 S.Ct 1354. The Supreme Court noted "these are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id.
The Supreme Court also noted that there are several well established exceptions to the general rule of exclusion of hearsay evidence and said that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records." Id. at 56, 124 S.Ct. 1354. The FDLE lab report used in this case was a document that purported to reveal the nature of the substances seized from Johnson, i.e., their composition, quality, and quantity. The report was generated by a chemical analyst in the employ of FDLE and was produced using general procedures regularly conducted by the FDLE labs.
Thus, the primary issue presented here is whether the FDLE lab report is...
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