State v. Pasqualone, 2007-A-0005 (12-14-2007)State v. Pasqualone, 2007-A-0005 (12-14-2007)
- Reporters:
- ,
- Before:
- Timothy P. Cannon
Lead Opinion
OPINION
{¶ 1} This matter is submitted to this court on the record and the briefs of the parties. Appellant, Thomas A. Pasqualone, appeals the judgment entered by the Ashtabula County Court of Common Pleas. The trial court denied Pasqualone‘s motion to dismiss the indictment for a speedy-trial violation. In addition, the trial court sentenced Pasqualone to an eight-month prison term for his conviction for possession of cocaine.
{¶ 2} On November 9, 2005, Trooper Jason Bonar of the Ohio State Highway Patrol was on routine patrol working the midnight shift. Trooper Bonar noticed a vehicle with a loud exhaust system pass him in the opposite direction. In addition, after the car passed him, Trooper Bonar noticed that the vehicle‘s license plate light was not illuminated. Trooper Bonar turned his vehicle around and stopped the vehicle.
{¶ 3} Pasqualone was driving the vehicle. He informed Trooper Bonar that he was not allowed to have a driver‘s license. After Trooper Bonar confirmed that Pasqualone‘s driver‘s license was suspended, he placed Pasqualone under arrest. During a search incident to the arrest, Trooper Bonar found a pack of cigarettes, which contained a large white rock. After advising Pasqualone of the Miranda warnings, Trooper Bonar asked Pasqualone whether the rock was “meth or crack?” Pasqualone told Trooper Bonar he did not know “what they gave me.” Trooper Bonar field-tested the substance, and it tested positive for cocaine base. Later testing at the Ohio State Highway Patrol Crime Laboratory confirmed the substance was .446 grams of cocaine.
{¶ 4} Pasqualone was indicted on one count of possession of cocaine, in violation of R.C.
{¶ 5} The state served Pasqualone‘s attorney with a copy of the laboratory report stating the substance contained cocaine. Pasqualone did not demand the analyst‘s testimony pursuant to R.C.
{¶ 6} A jury trial was held. The jury found Pasqualone guilty of the possession of cocaine charge. The trial court sentenced Pasqualone to an eight-month prison term for his conviction.
{¶ 7} Pasqualone raises two assignments of error. His first assignment of error is:
{¶ 8} “The trial court erred in failing to dismiss the charge against defendant when he was denied his right to a speedy trial under Ohio R.C. 2945.71.”
{¶ 9} “The standard of review of a speedy trial issue is to count the days of delay chargeable to either side, and determine whether the case was tried within the time limits set by R.C.
{¶ 10} “Speedy trial issues present mixed questions of law and fact. State v. Hiatt (1997), 120 Ohio App.3d 247, 261. We accept the facts as found by the trial court on some competent, credible evidence, but freely review the application of the law to the facts. Id.” State v. Kist, 11th Dist. No. 2006-G-2745, 2007-Ohio-4773, at ¶ 17-18.
{¶ 11} Since Pasqualone was charged with a felony, he had to be brought to trial within 270 days of his arrest. R.C.
{¶ 12} Pasqualone was arrested on November 10, 2005. His trial did not begin until September 11, 2006, 306 days after his arrest. Also, Pasqualone was held in jail on the pending charge from November 10, 2005 to November 17, 2005, when he posted bond. This time period, due to the triple-count analysis, counts as 21 days. Thus, his total time period prior to trial, without factoring in tolling events, was 320 days.
{¶ 13} R.C.
{¶ 14} “The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
{¶ 15} ” * * *
{¶ l6} “(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
{¶ 17} ” * * *
{¶ 18} “(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion.”
{¶ 19} Initially, we will address the applicable tolling events under R.C.
{¶ 20} “A demand for discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E).” State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, syllabus. On February 3, 2006, Pasqualone filed a request for a bill of particulars and a request for discovery. The state responded to these requests on February 10, 2006. Accordingly, these events tolled the period from February 3-10, 2006, for a total of seven days.
{¶ 21} A motion to suppress will toll the speedy-trial clock from the time the motion is filed until the trial court rules on the motion. State v. Dach, 11th Dist. Nos. 2005-T-0048 and 2005-T-0054, 2006-Ohio-3428, at ¶ 34. On March 1, 2006, Pasqualone filed a motion to suppress evidence relating to his arrest and a motion to suppress any statements he made. The state filed its response to these motions on March 14, 2006. The trial court denied Pasqualone‘s motions to suppress on March 24, 2006. The period from March 1-24, 2006 was tolled, for a total of 23 days.
{¶ 22} The Supreme Court of Ohio has held that “[a] motion in limine filed by a defendant tolls speedy-trial time for a reasonable period to allow the state an opportunity to respond and the court an opportunity to rule.” State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, at paragraph two of the syllabus. On March 29, 2006, Pasqualone filed four motions in limine. On April 4, 2006, the state filed its response to Pasqualone‘s motions in limine. On May 11, 2006, the trial court ruled on Pasqualone‘s motions in limine. It granted two of the motions and denied the remaining two motions. Thus, the time period from March 29, 2006 through May 11, 2006 was tolled, for a total of 43 days.
{¶ 23} Next, we will address the state‘s contention that its motion to continue was a tolling event pursuant to R.C.
{¶ 24} On May 2, 2006, the state filed a motion to continue the trial set for May 15, 2006, on the ground that a necessary witness, Brandon Werry, was unavailable. On May 11, 2006, the trial court granted the state‘s motion to continue and rescheduled the trial for September 11, 2006.
{¶ 25} Initially, we note that the trial court did not make any indication as to why the trial had to be postponed nearly four months due to the unavailability of the state‘s witness for the May trial date.
{¶ 26} Also, the state‘s “necessary witness,” Brandon Werry, did not testify at Pasqualone‘s trial. In light of this occurrence, we do not agree with the state‘s classification of Werry as a “necessary witness.” Werry was the laboratory analyst who prepared the report. The state introduced his report pursuant to the procedures set forth in R.C.
{¶ 27} Pasqualone‘s speedy-trial time period was tolled seven days for the state to respond to his discovery request and demand for a bill of particulars, 23 days due to his motion to suppress, and 43 days as a result of filing the four motions in limine. Thus, a total of 73 days is tolled and charged against Pasqualone. Subtracting this total from the 320 days Pasqualone awaited trial, Pasqualone was brought to trial within 247 “chargeable” days. Accordingly, his speedy-trial rights were not violated.
{¶ 28} Pasqualone‘s first assignment of error is without merit.
{¶ 29} Pasqualone‘s second assignment of error is:
{¶ 30} “The admission of the laboratory analysis report pursuant to Ohio R.C. 2925.51 violated appellant‘s constitutional rights under the confrontation clause of the Sixth Amendment, rendering his conviction erroneous.”
{¶ 31} At trial, Pasqualone objected to the admission of the laboratory report on the basis that his
{¶ 32} “(A) In any criminal prosecution for a violation of this chapter or Chapter 3719. of the Revised Code, a laboratory report from the bureau of criminal identification and investigation, a laboratory operated by another law enforcement agency, or a laboratory established by or under the authority of an institution of higher education that has its main campus in this state and that is accredited by the association of American universities or the north central association of colleges and secondary schools, primarily for the purpose of providing scientific services to law enforcement agencies and signed by the person performing the analysis, stating that the substance that is the basis of the alleged offense has been weighed and analyzed and stating the findings as to the content, weight, and identity of the substance and that it contains any amount of a controlled substance and the number and description of unit dosages, is prima-facie evidence of the content, identity, and weight or the existence and number of unit dosages of the substance. In any criminal prosecution for a violation of section
{¶ 33} “Attached to that report shall be a copy of a notarized statement by the signer of the report giving the name of the signer and stating that the signer is an employee of the laboratory issuing the report and that performing the analysis is a part of the signer‘s regular duties, and giving an outline of the signer‘s education, training, and experience for performing an analysis of materials included under this section. The signer shall attest that scientifically accepted tests were performed with due caution, and that the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory.
{¶ 34} “(B) The prosecuting attorney shall serve a copy of the report on the attorney of record for the accused, or on the accused if the accused has no attorney, prior to any proceeding in which the report is to be used against the accused other than at a preliminary hearing or grand jury proceeding where the report may be used without having been previously served upon the accused.
{¶ 35} “(C) The report shall not be prima-facie evidence of the contents, identity, and weight or the existence and number of unit dosages of the substance if the accused or the accused‘s attorney demands the testimony of the person signing the report, by serving the demand upon the prosecuting attorney within seven days from the accused or the accused‘s attorney‘s receipt of the report. The time may be extended by a trial judge in the interests of justice.
{¶ 36} “(D) Any report issued for use under this section shall contain notice of the right of the accused to demand, and the manner in which the accused shall demand, the testimony of the person signing the report.”
{¶ 37} The
{¶ 38} Pasqualone relies on the Third Appellate District‘s decision in State v. Smith to support his position. State v. Smith, 2006-Ohio-1661. In Smith, the Third District held that an analyst‘s report prepared pursuant to R.C.
{¶ 39} Other Ohio courts have previously addressed this issue and, for various reasons, have held that the defendant‘s rights to confrontation were not violated. See State v. Moore, 8th Dist. No. 85828, 2006-Ohio-277, at ¶ 25-29; State v. Clark, 11th Dist. Nos. 2001-P-0031, 2001-P-0033, 2001-P-0034, 2001-P-0057, and 2001-P-0058, 2004-Ohio-334, at ¶ 65-69; State v. Fleming (May 10, 1983), 10th Dist. No. 82AP-813, 1983 Ohio App. LEXIS 15683, at *7-9; State v. Shields (Nov. 1983), 5th Dist. No. CA-83-3, 1983 Ohio App. LEXIS 14322, at *3-4; State v. Smith (Sept. 23, 1981), 9th Dist. No. 1731, 1981 Ohio App. LEXIS 11150, at *6-10. All of these cases were decided prior to the Third District‘s decision in State v. Smith, and all but State v. Moore were decided prior to the United States Supreme Court‘s opinion in Crawford v. Washington.
{¶ 40} In 1981, in State v. Smith, the Ninth Appellate District conducted a significant analysis of R.C.
{¶ 41} In State v. Moore and State v. Clark, the courts conducted a minimal analysis of this issue, summarily concluding that the defendant‘s failure to request a copy of the expert‘s report under R.C.
{¶ 42} We will conduct an independent analysis of whether the admission of the analyst‘s report violated Pasqualone‘s Confrontation Clause rights.
{¶ 43} We initially need to determine whether the report in this matter was testimonial. The Crawford Court declined to adopt a formal definition of “testimonial.” State v. Stahl, 2006-Ohio-5482, at ¶ 19. However, the Supreme Court of Ohio noted that the Crawford Court did provide three examples of a testimonial statement, including: (1) in-court testimony or its functional equivalent, including affidavits; (2) statements contained in formal testimonial materials, including depositions and affidavits; and (3) statements made where an objective declarant would reasonably believe the statement would be available to be used at a subsequent trial. (Secondary citations omitted.) Id., quoting Crawford v. Washington, 541 U.S. at 51-52.
{¶ 44} In this matter, an affidavit was attached to the report pursuant to R.C.
{¶ 45} Next, we address the issue of whether a defendant may waive the confrontation rights. The Third District held that “a criminal defendant can waive his confrontation rights by failing to demand the testimony of the laboratory technicians under R.C. 2925.51(C).” Id. at ¶ 18. Other courts have also held that a defendant can
{¶ 46} In its analysis, the Third District held that the waiver of confrontation rights pursuant to R.C.
{¶ 47} In State v. Smith, the Third District found the language in the warning contained in the report was not sufficient to adequately inform the defendant of the rights he was waiving. State v. Smith, 2006-Ohio-1661, at ¶ 23-24. The court held, for a waiver to be sufficient, it must inform the defendant “that failure to make the demand [of the testimony of the person who prepared the report] will permit the laboratory report to serve as prima facie evidence of the conclusions in the report without the testimony of the technician.” Id. at ¶ 24.
{¶ 48} The Third District concluded that “the purpose of serving the report on the defendant” under R.C.
{¶ 49} Permitting an attorney to make a limited waiver of a defendant‘s constitutional rights where there is a statute or rule providing that inaction will constitute waiver is not unprecedented. Under Crim.R. 23, a defendant in a “petty offense” case only receives a jury trial if he demands one. Ohio courts have upheld this rule requiring action on the part of the defendant‘s attorney in order to exercise the defendant‘s constitutional right to a jury trial. See Middletown v. Flinchum (Dec. 18, 2000), 12th Dist. No. CA99-11-193, 2000 Ohio App. LEXIS 5908, at *15, citing Mentor v. Giordano (1967), 9 Ohio St.2d 140, paragraph one of the syllabus. However, we note that Crim.R. 5(A)(5) requires the trial court to inform the defendant at the initial hearing of the necessity to make a demand for a jury trial in petty offense cases. Thus, the
{¶ 50} In R.C.
{¶ 51} It could be argued that the procedures in R.C.
{¶ 52} We agree with the Third District‘s conclusion that a defendant‘s waiver of his or her confrontation rights under R.C.
{¶ 53} In this matter, we note the record demonstrates the state‘s intention to call the analyst as a witness. Werry was subpoenaed on two separate occasions. Further, the state filed two motions to continue due to the unavailability of Werry. Due to these
{¶ 54} We do not agree that R.C.
{¶ 55} Pasqualone‘s second assignment of error has merit to the extent indicated.
{¶ 56} The judgment of the trial court is reversed. This matter is remanded to the trial court to conduct a new trial.
MARY JANE TRAPP, J., concurs,
DIANE V. GRENDELL, J., concurs in part, dissents in part, with a Dissenting Opinion.
Dissenting Opinion
{¶ 57} I concur in the majority‘s disposition of the first assignment of error and respectfully dissent from the disposition of the second assignment.
{¶ 58} The issue under the second assignment of error is whether the admission of the Ohio State Highway Patrol Crime Laboratory Report, pursuant to R.C.
{¶ 59} Initially, the majority determines that such laboratory reports constitute “testimonial” evidence for the purposes of the
{¶ 60} Assuming, arguendo, such reports are testimonial, the majority paradoxically concludes that R.C.
{¶ 61} The majority follows the analysis of the Third Appellate District in State v. Smith, 3rd Dist. No. 1-05-39, 2006-Ohio-1661. Essentially, the argument is that a defendant is able to waive his right to confront/cross-examine the laboratory technician who prepares the report, but that such waiver must be done “knowingly, intelligently, and voluntarily.” The procedure set forth in R.C.
{¶ 62} The error in this analysis is that a defendant who does not exercise his right to cross-examine the laboratory technician conducting the test and/or preparing the report proffered into evidence is not waiving his
{¶ 63} This distinction has been recognized in hundreds of cases which stand for the proposition that the decision to cross-examine a witness, particularly laboratory technicians, is a “tactical decision” within the discretion of a defendant‘s trial counsel. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, at ¶ 220; State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, at ¶ 93 and ¶ 125; State v. Russell, 2nd Dist. No. 21458, 2007-Ohio-137, at ¶ 55 (“[t]rial counsel‘s decision to cross-examine a witness and the extent of such cross-examination are tactical matters“) (citations omitted); State v. Harco, 11th Dist. No. 2005-A-0077, 2006-Ohio-3408, at ¶ 37 (“[t]he decision to call a witness is `within the rubric of trial strategy and will not be second-guessed by a reviewing court‘“) (citations omitted). Taken to its logical conclusion, the majority‘s holding would require trial counsel to obtain the defendant‘s knowing, voluntary, and intelligent consent before foregoing the cross-examination of any witness, an obviously impossible situation.
{¶ 64} Just as significantly, the drafters of R.C.
{¶ 65} Since the prosecution served a copy of the Highway Patrol Crime Laboratory Report upon Pasqualone‘s defense counsel in accordance with R.C.