State v. Workman

• Decision Date: 04 October 2005
• Docket Number: No. 20040530.,20040530.
• Citation: 122 P.3d 639,2005 UT 66
• Parties: STATE of Utah, Plaintiff and Appellee, v. Kathleen Jo WORKMAN, Defendant and Appellant.
• Court: Utah Supreme Court

122 P.3d 639

2005 UT 66

STATE of Utah, Plaintiff and Appellee, v. Kathleen Jo WORKMAN, Defendant and Appellant.

No. 20040530.

Supreme Court of Utah.

October 4, 2005.

Mark L. Shurtleff, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., Michael S. Colby, Salt Lake City, for plaintiff.

Linda M. Jones, Andrea J. Garland, Salt Lake City, for defendant.

WILKINS, Associate Chief Justice:

¶ 1 In 2004, Kathleen Jo Workman was convicted of operating a clandestine laboratory, a first degree felony offense under Utah Code section 58-37d-5(1) (2005). Workman appeals her conviction, claiming that the district court erroneously admitted two toxicology reports. In addition, she claims that there was insufficient evidence to support her conviction. We affirm.

BACKGROUND

¶ 2 In 2002, while executing a federal fugitive warrant on a West Valley City residence, several police officers observed items consistent with the production of methamphetamine ("meth"). A more thorough search of the residence, and the southeast basement bedroom in particular, yielded chemicals, equipment, and wall stains indicating recent meth production. Several samples taken from the residence were analyzed by Christine Wright of the Utah State Crime Laboratory, and the resulting toxicology reports positively identified meth and meth precursors.

¶ 3 The southeast bedroom also contained several personal items belonging to Workman, including her day planner, driver's license, and identification. These items were found on a bookshelf along with a Tupperware-type container holding pills and a plastic container holding a meth pipe and a glass loading rod. Workman later admitted to buying both containers, and other equipment found in the room, for household purposes. An expert identified a fingerprint on the Tupperware-type container as Workman's, although he could not say when it had been placed there.

¶ 4 Workman arrived at the residence while the officers were conducting their search. She admitted that she had been living in the southeast basement bedroom with the renter, Michael Versteeg, although she later stated that she had moved out of the residence three weeks prior to the search. Workman also admitted to previous drug use, including meth and marijuana use.

¶ 5 During pretrial discovery, the State represented that Christine Wright would be testifying to introduce the toxicology reports. On the first day of trial, however, the State filed a motion which stated that Wright had moved out of state and asked that her supervisor, Jennifer McNair, be allowed to testify in her place. Over Workman's objection, the district court ruled that Wright was unavailable and that McNair could testify as a substitute expert witness. Absent Wright's testimony, the district court ruled that the toxicology reports could be admitted under the residual hearsay exception in rule 804(b)(5) of the Utah Rules of Evidence.

¶ 6 Ultimately, the jury convicted Workman of operating a clandestine laboratory, a first degree felony offense under Utah Code section 58-37d-5(1). Workman appeals her conviction upon two grounds: (1) McNair's testimony and the toxicology reports were improperly admitted by the district court, and (2) the evidence presented at trial was insufficient to support the verdict.

ANALYSIS

¶ 7 Workman raised several arguments in her brief, including that the toxicology reports should not have been admitted because they violated rules 803(6) and 803(8) of the Utah Rules of Evidence. However, because Workman failed to preserve these claims by specific objection below, we will not review them. See State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989) (requiring specific preservation of claims). Nor has she made a claim of exceptional circumstances or plain error. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (holding that, except in cases of exceptional circumstances or plain error, the preservation rule applies to all claims).

¶ 8 Workman also argues that sanctions should have been imposed on the State for discovery violations under rule 16(g) of the Utah Rules of Criminal Procedure. Because she did not seek appropriate relief under rule 16 below, we hold that her claim for relief was waived, and she is not entitled to the relief she seeks on appeal. See State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct.App.1998) (holding that "a defendant `essentially waives his right to later claim error'" by failing to request relief when unexpected testimony is introduced (quoting State v. Larson, 775 P.2d 415, 418 (Utah 1989))).

¶ 9 We will therefore examine only two issues: whether the toxicology reports were properly admitted by the district court under rule 804(b)(5), and whether the evidence presented at trial was sufficient to support the verdict.

I. HEARSAY EVIDENCE

¶ 10 We first address the question of whether the toxicology reports were properly admitted. Our standard of review on the admissibility of hearsay evidence is complex, since the determination of admissibility "often contains a number of rulings, each of which may require a different standard of review." Norman H. Jackson, Utah Standards of Appellate Review, 12 Utah Bar J. 8, 38 (1999). We review the legal questions to make the determination of admissibility for correctness. Hansen v. Heath, 852 P.2d 977, 979 (Utah 1993). We review the questions of fact for clear error. State v. Parker, 2000 UT 51, ¶ 13, 4 P.3d 778. Finally, we review the district court's ruling on admissibility for abuse of discretion. Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 10, 94 P.3d 193.

¶ 11 The Utah Rules of Evidence provide a variety of specific exceptions to the general prohibition against hearsay evidence. Utah R. Evid. 801-804 (2004). Among these exceptions are several that depend upon the declarant's unavailability. Utah R. Evid. 804. Rule 804(b)(5) serves as the residual hearsay exception for statements where the declarant is unavailable:

A statement not covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will be best served by admission of the statement into the evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Utah R. Evid. 804(b)(5) (current version at Utah R. Evid. 807 (2004)).

¶ 12 The residual hearsay exception is to be used rarely and construed strictly. See United States v. Heyward, 729 F.2d 297, 300 (4th Cir.1984) (stating that identical federal rule 804(b)(5) is for "exceptional circumstances" and is to be used "sparingly" and "rarely"). Thus, we only allow the admission of hearsay evidence under the residual exception when the high requirements of rule 804(b)(5) are met. We find that they are not satisfied here.

¶ 13 There are at least three objections to admitting the toxicology reports as evidence under rule 804(b)(5). First, the totality of the circumstances surrounding the reports did not have sufficient indicia of reliability because of the subjective nature of the testing from which the reports were drawn. Second, McNair's testimony was insufficient to provide Workman with a fair opportunity to prepare to challenge the reliability of the reports. Third, the testing involved in the reports is materially different from the testing in cases where we have allowed substitute expert witnesses. We will discuss each in turn.

¶ 14 First, the circumstances surrounding the toxicology reports are not sufficiently reliable to satisfy the first requirement of rule 804(b)(5), that the evidence have a guarantee of trustworthiness. Hearsay statements that have sufficient indicia of reliability are admissible. Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). For example, a statement made on one's deathbed, Utah R. Evid. 804(b)(2), or a statement contrary to one's interests, Utah R. Evid. 804(b)(3), may be admitted as hearsay because it is highly unlikely, under the circumstances in which the respective statement was made, that cross-examination would have more than marginal utility. Wright, 497 U.S. at 820, 110 S.Ct. 3139. The residual hearsay exception requires a similarly high standard of trustworthiness. Id. at 821, 110 S.Ct. 3139.

¶ 15 The toxicology reports do not meet this standard due to the subjective nature of the testing from which they were drawn. The tests the Utah State Crime Laboratory conducts to determine whether a suspected substance is meth include color tests, where the substance in question is added to a certain formula, with a resulting color indicating the presence of controlled substances or precursors, and tests in which the tester must compare the results of a gas chromatograph mass spectrometer test of the substance against the results of a similar test upon a known substance. These tests depend upon subjective inferences by the testing party, based, as McNair testified, on their "training and experience."

¶ 16 We do not wish to cast any doubt upon the procedures and tests in which the Utah State Crime Laboratory engages, their scientific accuracy, or their usefulness in determining whether controlled substances or precursors are present. However, while the testing of questionable substances may be very helpful in determining whether controlled substances or precursors are present, the conclusions of those tests, by...