State v. Laturner

• Citation: 163 P.3d 367
• Decision Date: 27 July 2007
• Docket Number: No. 96,086.,96,086.
• Parties: STATE of Kansas, Appellee, v. Michael Edward LATURNER, Appellant.
• Court: Court of Appeals of Kansas

163 P.3d 367

STATE of Kansas, Appellee, v. Michael Edward LATURNER, Appellant.

No. 96,086.

Court of Appeals of Kansas.

July 27, 2007.

Rachel Pickering, of Kansas Appellate Defender Office, for appellant.

Garth L. Adams, assistant county attorney, and Phill Kline, attorney general, for appellee.

Before HILL, P.J., McANANY, J., and BRAZIL, S.J.

McANANY, J.

Michael Edward Laturner challenges his convictions for possession of methamphetamine and drug paraphernalia. He claims the trial court's reliance upon K.S.A.2006 Supp. 22-3437 to admit the incriminating results of lab tests performed on substances found in his possession denied him the right under the Sixth Amendment to the United States Constitution to confront his accuser. Because of the testimonial nature of the lab report and the trial court's discretion under K.S.A.2006 Supp. 22-3437(3) to admit it into evidence over the defendant's objection and without the testimony of the technician who prepared it, that portion of the statute violates the Sixth Amendment's Confrontation Clause when applied to the defendant in a criminal case. Therefore, we reverse Laturner's convictions and remand the case for a new trial.

Background Facts

Laturner was arrested and charged with possession of methamphetamine, possession of drug paraphernalia, and criminal threat. The State filed a pretrial notice of its intent to introduce into evidence a Kansas Bureau of Investigation (KBI) report. The report contained an analysis of the contents of four zip lock baggies hidden by Laturner but recovered by the authorities. The lab report concluded that three of the four baggies contained methamphetamine.

Laturner objected to the lab report's admission without the testimony of the forensic scientist who wrote it because the report was not clear as to which baggies tested positive for methamphetamine. He also objected because the certificate of analysis did not explain what test equipment was used. The court overruled Laturner's objection, and the report was received into evidence at trial without further objection from Laturner. The jury convicted Laturner of possession of methamphetamine and possession of drug paraphernalia, but acquitted him of criminal threat.

Laturner appeals. He argues that his right of confrontation was violated because he was not able to cross-examine the technician who prepared the lab report. He claims K.S.A.2006 Supp. 22-3437 is unconstitutional based on the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Preservation of the Confrontation Issue

The State does not address the merits of the constitutional issue. It contends that Laturner's motion in limine did not challenge the report on confrontation grounds. Further, the State argues, when Laturner's motion was unsuccessful, he failed to preserve the issue at trial and invited the error he now complains of by not objecting to the admission of the report at trial.

Subject to three exceptions, a timely and specific objection for the admission of evidence is necessary to preserve an issue for appeal. State v. Torres, 280 Kan. 309, 319, 121 P.3d 429 (2005). The exceptions arise when (1) the newly asserted issue involves only a question of law founded on proven or admitted facts, and answering the legal question will resolve the case; (2) consideration of the issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) by considering the previously unasserted issue the judgment of the trial court may be upheld on appeal as being right but for the wrong reason. See State v. Adams, 280 Kan. 494, 511, 124 P.3d 19 (2005), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006).

Laturner asserts that we should consider the issue to prevent the denial of his fundamental rights. The right to confrontation is a fundamental right guaranteed by the Sixth Amendment. Further, Laturner did not invite the court to err in admitting this evidence since he objected to the State's pretrial proffer and did not elicit the testimony he now challenges. Finally, while he did not specifically refer to his Sixth Amendment rights at the pretrial hearing, the nature of his complaint was that he was denied the opportunity to confront and to cross-examine at trial the forensic scientist who prepared the report to determine which bags contained methamphetamine and what testing equipment was used to detect its presence.

Applicable Standards for Constitutional Review

Our Supreme Court considered the constitutionality of K.S.A. 22-3437 in State v. Crow, 266 Kan. 690, 974 P.2d 100 (1999). Since the constitutional analysis in Crow no longer applies, as we will discuss later, we must revisit this issue. In doing so we presume the statute is constitutional and resolve all doubts in favor of its validity. In determining its constitutionality, it is our duty to uphold a statute rather than defeat it if there is any reasonable way to do so. See State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).

The Statute

The challenged statute, K.S.A.2006 Supp. 22-3437, permits the admission of a forensic lab report without the testimony of the technician who prepared it. Since our analysis requires the interpretation of this statute and since the statute implicates the fundamental constitutional right of confrontation when applied in a criminal case, our review is de novo. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

The statute sets forth the procedure to be followed before admission of a forensic lab report without the testimony of the technician. First, at the request of a law enforcement agency, the technician will prepare a certificate, sworn to under oath, which contains the results of the analysis. K.S.A.2006 Supp. 22-3437(2). This section of the statute also requires the technician to submit a sworn declaration which details:

"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." K.S.A.2006 Supp. 22-3437(2).

Second, at least 20 days in advance of the trial or hearing where the certificate of the lab test results will be offered, the offering party must give notice to the court and the opposing party and provide them with copies of the certificate and the reports relating to the analysis in question. The opposing party then must assert any objection and the grounds for the objection within 10 days. K.S.A.2006 Supp. 22-3437(3).

Third, in the event of an objection, the district court must determine the admissibility of the certificate of the lab results at least 2 days before the trial or hearing.

"A proffered certificate shall be admitted in 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 content of a blood or breath sample will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section may be extended upon a showing of good cause." K.S.A.2006 Supp. 22-3437(3).

Prior Consideration of the Constitutionality of the Statute

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Our Supreme Court considered the constitutionality of K.S.A. 22-3437 with respect to a criminal defendant's right of confrontation in Crow. The court concluded that the statute does not violate a defendant's right of confrontation. In doing so, the court balanced the public interest in judicial economy against the defendant's right of confrontation.

"By enacting K.S.A.1996 Supp. 22-3437, the Kansas Legislature determined the public has a significant interest in avoiding the unnecessary expense of insuring the presence of laboratory technicians at trials where the content of their testimony will not be challenged by defendants. The availability of criminalists or laboratory personnel has been a limiting factor in setting trials, and the prompt administration of justice justifies admission of evidence without their presence in many instances. A constitutional mechanism has been provided whereby defendants can challenge the admissibility of such evidence and demonstrate the necessity for the presence of such witnesses. We leave the imposition of confrontation to counsel and not the trial court, but we are confident that trial courts can control spurious objections by defendants or attempts by the prosecution to utilize K.S.A.1996 Supp. 22-3437 where it would clearly be inappropriate. Properly utilized, this provision can speed up trial time, clarify issues, and promote judicial economy while still fully protecting the rights of the accused." Crow, 266 Kan. at 706, 974 P.2d 100.

The court in Crow noted that the statute gives a defendant the opportunity to challenge the report before the trial or hearing, in which case the district court serves as a gatekeeper in evaluating the defendant's objections to the report. 266 Kan. at 705-06, 974 P.2d 100. Relying on several United States Supreme Court cases, including Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the court determined that a hearsay statement admitted under a "`firmly rooted' [hearsay] exception" with "`particularized guarantees of trustworthiness'"...