Martin v. StateMartin v. State
Jermaine Lamar Martin appeals his cоnvictions for possession of cocaine and possession of cannabis arguing, in part, that the trial court erred in admitting, over objection, a report of the Florida Department of Law Enforcement (FDLE), which indicated that the substances seized from Martin were contraband. The prosecutiоn offered this report under the business records exception to the hearsay rule in lieu of presenting at trial the live testimony of the person who performed the tests. The defense objected to the admission of the lab report,1 arguing that admission of such without the testimony of the author of the reрort denied Martin his right under federal and state Confrontation Clauses.2 We hold that the admission
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court established a test for determining when the admission of hearsay evidence viоlates the Confrontation Clause of the United States Constitution. The Crawford court held that the admission of hearsay evidence which was “testimonial” in nature violates the Confrontation Clause unless the declarant is unavailable to testify and unless the defendant had a prior meaningful opportunity to cross-exаmine the declarant. Id. 124 S.Ct. at 1369. While Crawford did not provide a comprehensive definition of “testimonial,” it did explain that business records “by their nature” are not testimonial, id. 124 S.Ct. at 1367, but that statements “reasonably expect[ed] to be used prosecutorially” or which “would be available for use at a later trial” were. 124 S.Ct. at 1364. More particularly, the Court explained in Crawford that testimonial statements include:
ex-pаrte 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 [....] extrajudicial statеments ... contained in formalized testimonial materials, such as affidavits, [... and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Id. (emphasis added).
While the FDLE report at issue in the instant case mаy meet the definition of a business record under the Florida statute permitting admission of such records, see
Applying Crawford, Florida courts have consistently held that records such as the FDLE report before us are testimonial in nature. In Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005), we held that a “breath test affidavit” prеpared by a law enforcement officer following the arrest of the subject tested was testimonial hearsay evidence in that the affidavit “contained statements one would reasonably expect to be used prosecutorially and was made under circumstances which would lead an оbjective witness to reasonably believe the statements would be available for trial.” Id. at 618; see also Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2005) (holding that a breath-test affidavit was testimonial hearsay and not admissible as a business record because the affidavit was prepared in anticipation of trial); Johnson v. State, 929 So. 2d 4 (Fla. 2d DCA 2005) (“an FDLE lab report prepared pursuant tо a police investigation and admitted to establish an element of a crime is testimonial hearsay even if it is admitted as a business record“), rev. granted, 924 So. 2d 810 (Fla. 2006); Rivera v. State, 917 So. 2d 210 (Fla. 5th DCA 2005) (explaining that while drug or alcohol tests performed by a hospital in the usual course of business are admissible as business records, similar tests performed by an FDLE lab are not pursuant to the Confrontation Clause); Sobota v. State, 933 So. 2d 1277 (Fla. 2d DCA 2006).
Here, the State has not claimed that the person who tested the substances
Because a new trial is required, it is not necessary to address the other issue raised on appeal. The cause is REVERSED and REMANDED for a new trial.
POLSTON, J., concurs, and THOMAS, J., dissents with written opinion.
THOMAS, J. dissenting.
I respectfully dissent. I would align this court with those jurisdictions which have determined that laboratory reports are not “testimonial” and thus may be admitted into evidencе without violating the Confrontation Clause and the Supreme Court‘s holding in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).3
The holding in Crawford is clearly limited to “testimonial” evidence, which generally involves statements by witnesses, and not routine records produced in the ordinary course of business by persons not directly involved with the prosecution or investigation of a case. As the majority stated in Crawford:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it appliеs at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
541 U.S. at 68, 124 S.Ct. 1354 (footnote omitted) (emphasis added).
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near thе time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and
s. 90.902(11) , unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupаtion, and calling of every kind, whether or not conducted for profit.
Thus,
In Johnson v. State, 929 So. 2d 4 (Fla. 2d DCA 2005), the Second District acknowledged that business records were not barred by Crawford because they could be considered nontestimonial:
[The Supreme Court] provide[d]a noncomprehensive list of testimony that would be considered testimonial: testimony at a preliminary hearing, testimony in front of a grand jury or at a trial, and testimony that results from police interrogation..... It also noted, in dicta, that certain hearsay statements are by their nature nontestimonial—such as business records[.]
Id. at 7 (emphasis added). However, the Second District held that FDLE reports could not be admitted into evidence because they were “intended to bear witness against the accused.” Id. I respectfully disagree with this holding. I believe that an FDLE report is not always intended to bear witness against the accused, because it could also be used to exonerate the accused. Thus, I would find the FDLE laboratory report is admissible as а business record.
The majority opinion notes that “[w]hile the FDLE report at issue . . . may meet the definition of a business record under the Florida statute permitting admission of such records, see
In Davis, this court rejected the appellant‘s argument that he was not afforded a fair hearing because he could not inquire into the accuracy of the lab report when only the records custodian, who was not present for the testing, testified at trial. 562 So. 2d at 432. This court analogized the appellant‘s claim to a similar claim made and rejected in United States v. Baker, 855 F.2d 1353 (8th Cir.1988). Id. In Baker, the court held that laboratory analyses made by a police laboratоry, when made on a routine basis, were admissible as business records if the defendants did not challenge the reliability of these reports. Id. at 1359-60.
The majority holds that the FDLE report does not qualify as a business record simply because its production is triggered by an arrest. However,
In Stambor v. One Hundred Seventy-Second Collins Corp., 465 So. 2d 1296 (Fla. 3d DCA 1985), the Third District discussed the reason that an accident report, prepared by a premises owner after a slip and fall, does not qualify as a business record:
Not all records regularly made by a business are admissible; a requirement of minimum reliability of a record is contained in Section 90.803(6) [Florida Statutes] which states that when the `sources of information or other circumstances show lack of trustworthiness’ business records are not admissible. Sometimes records that are infrequently made would not meet this test. Whenever a record is made for the purpose of рreparing for litigation, its trustworthiness is suspect and should be closely scrutinized.
Id. at 1297-98 (emphasis added) (citations omitted). FDLE‘s routinely produced laboratory reports are clearly distinguishable from the accident report in Stambor. FDLE has no motive to fabricate its reports and has no financial interest at stake. Further, FDLE will not suffer adverse consequences if its scientists report that a tested substance is not contraband.
Instead, FDLE laboratory reports reflect neutral scientific tests performed by state employees in a non-adversarial environment. See generally State v. Dedman, 136 N.M. 561, 102 P.3d 628, 636 (2004) (concluding that blood alcohol tests and reports produced by non-law enforcement personnel in a state laboratory were not suspect because they were prepared in a non-adversarial setting); cf. McElroy v. Perry, 753 So. 2d 121, 126 (Fla. 2d DCA 2000) (holding that independent medical examination prepared by expert for purpose of litigation lacked trustworthiness and was not admissible as business record). FDLE‘s tests are not affected or compromised by “prosecutorial” or “investigative” procedures. The reports memorializing these tests are prepared in the ordinary course of business, not solely in anticipation of litigation. Additionally, FDLE scientists are not hired еxperts who
In Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005), the court held that certificates of chemical analysis were similar to the business or official records held to be non-testimonial under Crawford because production of these certificates was not discretionary or based on opinion, but merely stated the facts of an accepted scientific test. The court explained, “Furthermore, we do not believe that the admission of these certificates of analysis implicate `the principal evil at which the Confrontation Clause was directed—particularly its use of ex parte examinations as evidence against the accused.\‘” Id. at 706 (citations omitted).
This is not a case where an arresting officer performed a test and produced testimonial evidence. See Shiver v. State, 900 So. 2d 615 (Fla. 1st DCA 2005) (holding that Crawford prohibited the admission of a state trooper‘s affidavit describing an alcohol breath test he performed). In contrast, FDLE‘s laboratory reports are not produced by law enforcement officers and are exactly the type of business records the legislature intended to authorize as exceptions to the hearsay rule. Such reports are not comparable to an arresting officer‘s affidavit.
As in this case, FDLE is usually not the arresting agency. Therefore, I do not believe that the admission of FDLE reports violates Crawford because the reports qualify as non-testimonial business records. Accordingly, I would affirm Appellant‘s conviction and certify conflict with Johnson.
Notes
A majority of jurisdictions hold that laboratory reports and similar documents are nontestimonial business or public records. See, e.g., People v. Johnson, 121 Cal.App.4th 1409, 18 Cal.Rptr.3d 230 (2004) (laboratory reports routine and nontestimonial documents); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005) (laboratory report on weight of cocaine a business record); State v. Dedman, 136 N.M. 561, 102 P.3d 628 (2004) (blood alcohol content reports nontestimonial); People v. Brown, 9 Misc.3d 420, 801 N.Y.S.2d 709 (2005) (DNA testing records nontestimonial); People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870 (Crim.Ct.2005) (breathalyzer test results regular business records); People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (2005) (autopsy reports business records); Moreno Denoso v. State, 156 S.W.3d 166 (Tex.App. 2005) (autopsy reports nontestimonial); Luginbyhl v. Commonwealth, 46 Va.App. 460, 618 S.E.2d 347 (2005) (petition for rehearing en banc granted Sept. 27, 2005) (report from breathalyzer machine and technician‘s certificate of calibration business records); cf. Frazier v. State, 907 So. 2d 985 (Miss.Ct. App.2005) (pen-packs nontestimonial); People v. Brown, 5 Misc.3d 440, 785 N.Y.S.2d 277 (2004) (statements in presentencing report nontestimonial).