State v. Miller

• Decision Date: 04 October 2006
• Docket Number: A127389.,03CR0968.
• Citation: 144 P.3d 1052,208 Or. App. 424
• Parties: STATE of Oregon, Appellant, v. Les L. MILLER, Respondent.
• Court: Oregon Court of Appeals

144 P.3d 1052

208 Or. App. 424

STATE of Oregon, Appellant, v. Les L. MILLER, Respondent.

03CR0968.

A127389.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2006.

Decided October 4, 2006.

Steven R. Powers, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jamesa J. Drake, Deputy Public Defender, argued the cause for respondent. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

In this criminal prosecution involving a charge of possession of a controlled substance, former ORS 475.992 (2003),¹ the state moved in limine on the morning of trial to have the court determine the admissibility of two lab reports prepared by employees of the Oregon State Police Forensic Laboratory (OSP lab) that the state wished to introduce into evidence without calling the authors of those reports as witnesses. The trial court agreed with defendant that, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the reports were "inadmissible without the live testimony of the forensic scientist, or criminalist or analyst who prepared the reports." The trial court further concluded, parenthetically, that ORS 475.235, which permits evidence of such reports to be admitted without live testimony from the authors under certain circumstances, is unconstitutional. The state appeals, arguing that the trial court was wrong in both respects. As explained below, although we agree with the state that ORS 475.235, as interpreted by the Oregon Supreme Court in State v. Hancock, 317 Or. 5, 854 P.2d 926 (1993), is constitutional, we conclude that the trial court nonetheless was correct in its ruling on the state's motion in limine. We therefore affirm.

None of the pertinent facts is in dispute. In January 2003, criminalist Kenn Meneely of the OSP lab prepared a report, in which defendant was denominated as a suspect, that stated in pertinent part that toxicological examination of a urine specimen that had been collected from defendant on December 21, 2002, confirmed the presence of methamphetamine. The report concluded: "I certify this to be my report concerning my laboratory tests on the evidence in the above identified case." On April 4, 2003, forensic scientist Rob Hilsenteger of the OSP lab prepared a report, naming defendant as a suspect, that stated that a glass smoking device with white residue in it had tested positive for methamphetamine. That report concluded that Hilsenteger "does hereby certify this to be a true copy of the original report." Both reports were addressed to the Grants Pass police department. In December 2003, defendant was indicted for possession of methamphetamine, a controlled substance, in Josephine County, Oregon. Former ORS 475.992 (2003).

Before trial, the prosecutor first assigned to the case represented to defense counsel that the prosecution would call the authors of the lab reports as witnesses. The prosecutor also listed Meneely as a witness on a status report filed with the court.

The week before trial, a new prosecutor was assigned the case. On the day scheduled for trial, that prosecutor moved in limine to admit the two OSP lab reports without live testimony from the authors of the reports. She explained that she had only just discovered "the potential for Crawford issues" in the case and had determined that Hilsenteger would not be available for trial because he had left the OSP lab. She indicated that Meneely, although still working for the lab, had not been subpoenaed for that day. The following exchange took place:

"THE COURT: So you're saying had you been aware of Crawford or reviewed the file earlier you would have had him under subpoena?

"[PROSECUTOR]: Yes, I would have, Your Honor. Yes, I would have. If I had reviewed the file earlier I would have asked for him to be notified of the hearing, if he was not going to be available we would not have declared ready at the time of docket."

Defense counsel noted that she was not told until the previous day that the state would not call the authors of the reports as witnesses, and stated that she was raising objections based on the Confrontation Clauses of the state and federal constitutions, as well as Hancock, because she did not have a chance to subpoena the authors of the reports: "And if I had known that this issue was going to come up I would have subpoenaed them."

The prosecutor argued that, although she would have subpoenaed the witnesses had she discovered the Crawford issues earlier, their testimony nonetheless was not constitutionally required because the lab reports were "non-testimonial evidence" for purposes of Crawford. She thus moved to admit the reports despite the unavailability of their authors. The trial court ruled that the lab reports did constitute "testimonial evidence" under Crawford. The court concluded:

"I feel that State v. Hancock does not apply in this case in that it's clear that the defendant was notified that these witnesses would be testifying, at least Mr. Meneely. And Mr. Meneely perhaps could have sufficed to—by familiarizing himself with the records in the other issue, the testing of the pipe and some pinkish crystals, perhaps could have sufficed there. But, it's really kind of—my main ruling is on Crawford and its effect on this kind of testimony, this kind of evidence.

"So for that reason I am going to rule that this is inadmissible without—the State's Exhibit 1 and 2 is inadmissible without the live testimony of the forensic scientist, or criminalist or analyst who prepared the reports."

The court ultimately entered an order stating that "having found that lab reports are testimonial in nature, that Crawford v. Washington applies, ORS 475.235 is unconstitutional based on Crawford, and therefore lab tests will not be allowed in evidence in this case."

The state appeals. See ORS 138.060; State v. Koennecke, 274 Or. 169, 545 P.2d 127 (1976) (state may appeal pretrial order excluding evidence pursuant to ORS 138.060). The state makes two related arguments: First, the state argues that the trial court erred in ruling that the reports were inadmissible because Hancock is controlling in this situation, and the reports were admissible under Hancock.² Second, the state asserts that, even if Hancock is called into question by Crawford, the reports are "non-testimonial" under Crawford and, thus, admissible.

Although we ultimately reach both of the state's arguments, we turn to its second argument first, as the trial court's ruling was predicated on its conclusion that the reports were "testimonial" under Crawford. The court's premise in Hancock was that "[d]efendant has the [Sixth Amendment] right to confront the criminalist" who prepares a report pursuant to ORS 475.235. Hancock, 317 Or. at 12, 854 P.2d 926 (emphasis added). We thus address the issues in the same order as did the trial court: First, does Crawford call into question the court's conclusion in Hancock that a defendant has a Sixth Amendment right to cross-examine the authors of reports such as those at issue in the present case? Or, put another way, are the reports "non-testimonial" evidence? Second, if the reports are "testimonial," should the court have admitted the reports under Hancock, which held that a defendant's right to confront witnesses is not compromised when, under ORS 475.235, "the state will call the criminalist if the defendant elects to have it do so"? Hancock, 317 Or. at 11, 854 P.2d 926.

In Crawford, the question was whether statements made by the defendant's wife during an interview with police officers could be admitted into evidence under a hearsay exception without giving the defendant an opportunity to cross-examine the wife. Crawford, 541 U.S. at 38, 124 S.Ct. 1354. Abandoning its previous "firmly rooted hearsay exception" and "particularized guarantees of trustworthiness" test concerning when hearsay evidence would be admitted, the Court held that, when evidence was "testimonial," the defendant had a right to confront witnesses. The Court emphasized that the Confrontation Clause was meant to curb the practice of using evidence of "ex parte examinations" against defendants. Id. at 50., 124 S.Ct. 1354 The Court continued:

"The text of the Confrontation Clause reflects this focus. It applies to `witnesses' against the accused—in other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). `Testimony,' in turn, is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

"Various formulations of this core class of `testimonial' statements exist: `ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' Brief for Petitioner 23; `extrajudicial statements * * * contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); `statements that were made under circumstances which would lead an objective witness...