State v. Marroquin

• Decision Date: 03 October 2007
• Docket Number: A127366.,C041873CR.
• Citation: 215 Or. App. 330,168 P.3d 1246
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Antonio Baltazar MARROQUIN, Defendant-Appellant.
• Court: Oregon Court of Appeals

168 P.3d 1246

215 Or. App. 330

STATE of Oregon, Plaintiff-Respondent, v. Antonio Baltazar MARROQUIN, Defendant-Appellant.

C041873CR.

A127366.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration April 20, 2007.

Respondent's Response to Petition for Reconsideration May 10, 2007.

Appellant's Response to Respondent's Response to Petition for Reconsideration May 23, 2007.

Decided October 3, 2007.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, and Jamesa J. Drake, Deputy Public Defender, Office of Public Defense Services, for petition.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General, for response.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE, Judges.

WOLLHEIM, J.

Defendant petitions for reconsideration of our decision affirming without opinion a judgment of conviction for two counts of possession of a controlled substance, two counts of manufacture of a controlled substance, and two counts of delivery of a controlled substance, former ORS 475.992 (2003), renumbered as ORS 475.840 (2005), and one count of tampering with physical evidence, ORS 162.295. State v. Marroquin, 212 Or.App. 219, 157 P.3d 796 (2007). On appeal, defendant argued, among other things, that the admission of a laboratory report that confirmed the presence of controlled substances, without requiring the state to produce the criminalist who prepared the report at trial, violated his right to confrontation under the Sixth Amendment to the United States Constitution.¹ Shortly after we issued our decision, the Supreme Court decided State v. Birchfield, 342 Or. 624, 157 P.3d 216 (2007), which held that requiring a criminal defendant to subpoena the criminalist who prepared a laboratory report, pursuant to ORS 475.235 (set forth below), violated the defendant's right to confrontation under Article I, section 11, of the Oregon Constitution.² In light of Birchfield, defendant petitions for reconsideration of our previous decision. We conclude that the admission of the laboratory report, without requiring the state to produce at trial the criminalist who prepared the report or to demonstrate that that person was unavailable, is plain error in light of Birchfield, and we exercise our discretion to correct it. Accordingly, we grant reconsideration, withdraw our former disposition, and reverse and remand defendant's drug-related convictions.³

The relevant facts are undisputed. At trial, the state offered the crime laboratory report, and defendant objected on the ground that its admission violated his Sixth Amendment right to confrontation as explained in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The court overruled the objection, reasoning that defendant had a statutory right, pursuant to ORS 475.235, to subpoena the criminalist who prepared the laboratory report and that his failure to do so, in effect, constituted a waiver of his right to confront that person. We affirmed the trial court's judgment of conviction without opinion. Marroquin, 212 Or.App. at 219, 157 P.3d 796.

Defendant petitions for reconsideration, arguing that, shortly after our decision, the Supreme Court decided Birchfield, which, he contends, resulted in "a change in the statutes or case law since the Court of Appeals' decision" and requires reversal of his convictions. ORAP 6.25(1)(d). We agree with defendant that Birchfield significantly changed the Supreme Court's prior case law. Accordingly, we grant defendant's petition and reconsider our previous decision in light of Birchfield.

ORS 475.235 governs the admission of laboratory reports that analyze controlled substances; it provides, in part:

"(4) In all prosecutions in which an analysis of a controlled substance or sample was conducted, a certified copy of the analytical report signed by the director of a state police forensic laboratory or the analyst or forensic scientist conducting the analysis shall be accepted as prima facie evidence of the results of the analytical findings.

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

In this case, the trial court relied on ORS 475.235 in admitting the laboratory report; it reasoned that defendant had waived the right to cross-examine the criminalist who prepared the laboratory report by failing to utilize the statutory procedure in ORS 475.235 to subpoena that person to trial. Before we turn to the merits of defendant's argument, we must first address the issue of preservation.

To preserve an issue for review, "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000). Here, defendant failed to preserve a claim that admitting the laboratory report, without requiring the state to produce at trial the criminalist who prepared it or to demonstrate that that person was unavailable to testify, violated his right to confrontation under the Oregon Constitution.⁴ Nonetheless, by asking us to reconsider our prior decision in light of Birchfield, he now implicitly asks us to review that issue.

This court has discretion to review unpreserved plain errors of law that are "apparent on the face of the record." ORAP 5.45(1). To constitute plain error, the error must (1) be an error of law, (2) be apparent, meaning the legal point is obvious, not reasonably in dispute, and (3) appear on the face of the record such that we "need not go outside the record or choose between competing inferences to find it." State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). To determine whether an error is plain, we examine it in light of the law as it exists at the time of the appeal and not as of the time the trial court rendered the challenged ruling. State v. Jury, 185 Or.App. 132, 139, 57 P.3d 970 (2002), rev. den., 335 Or. 504, 72 P.3d 636 (2003).

Here, the first and third requirements of plain error are satisfied; determining whether the admission of the laboratory report violates defendant's confrontation rights involves a question of law, see State v. Galloway, 202 Or.App. 613, 618, 123 P.3d 352 (2005), rev. den., 340 Or. 201, 131 P.3d 195 (2006), and the predicate facts necessary to assess that question of law appear on the face of the record. Accordingly, we focus on the second requirement; specifically, whether it is obvious that the trial court erred in admitting the laboratory report without requiring the state to call the criminalist as a witness or to demonstrate that the criminalist was unavailable.

Because we assess whether the error, if any, was "obvious" in light of the law "as of the time the appeal is decided," Jury, 185 Or.App. at 136, 57 P.3d 970, we begin with a brief discussion of the Supreme Court's decision in Birchfield. There, the Supreme Court concluded that, to the extent that the subpoena procedure in ORS 475.235 transfers the legal responsibility of securing the attendance of the criminalist who prepares a laboratory report from the state to the defendant, the statute violates Article I, section 11, of the Oregon Constitution. 342 Or. at 631-32, 157 P.3d 216.

Prior to trial, the defendant in Birchfield notified the court that he intended to cross-examine the criminalist who prepared the laboratory report that confirmed that the pipe seized from him contained cocaine, but he did not subpoena that person pursuant to ORS 475.235(5). Id. at 626, 157 P.3d 216. At trial, the state did not call the criminalist as a witness or demonstrate that the criminalist was unavailable. Id. at 627, 157 P.3d 216. The defendant objected to the admission of the laboratory report, arguing that "making his right to confront the state's witness dependent on his procuring the state's witness to testify [as required by ORS 475.235] was unconstitutional." Id. at 626, 157 P.3d 216. The trial court overruled the defendant's objection and the defendant was convicted of attempted possession of a controlled substance. Id. at 627, 157 P.3d 216. We affirmed the judgment of the trial court. State v. Birchfield, 204 Or.App. 689, 131 P.3d 804 (2006). The Supreme Court reversed, agreeing with the defendant.

The court focused its analysis on ORS 475.235 and reexamined its prior interpretation of that statute in State v Hancock, 317 Or. 5, 854 P.2d 926 (1993), in which the court had concluded that the subpoena procedure did not violate the state or federal constitution because it was merely a method of putting "the state on notice that the defendant wants to cross-examine the criminalist." Hancock, 317 Or. at 12, 854 P.2d 926. In Birchfield, the Supreme Court acknowledged the inconsistency between its interpretation of ORS 475.235 in Hancock, which placed the "legal responsibility to produce the [criminalist] on the defendant" by requiring that the defendant "subpoena the criminalist [under ORS 475.235] to exercise the right of confrontation," and State v. Moore, 334 Or. 328, 341, 49 P.3d 785 (2002), which held that "the state, not the defendant, bears the burden of producing the witness for confrontation by the defendant[.]" 342 Or. at 630, 157 P.3d 216. The court explained that

"[a] statutory requirement that a defendant notify the state that the defendant will insist on the right to cross-examine the state's witness cannot be equated, as suggested in Hancock, with a requirement that a defendant undertake and fulfill the state's obligation to secure the attendance of a state's witness at trial. To the extent that Hancock holds to the contrary, it was wrongly decided and should no longer be relied upon."

Id. at 631, 157 P.3d 216 ...