Confrontation clause requires that the scientist who performed a drug analysis testify
People v. Ogaz, 2020 WL 4581253 (Cal.App. 4 Dist., 2020) 07/14/2020; Modified 08/10/2020
Summary: Ignacio Ogaz appealed his conviction for and argued that his Sixth Amendment right to confront adverse witnesses was violated by the admission of drug testing evidence. The Court of Appeal held that the confrontation clause requires that the defendant have an opportunity to cross-examine the scientist who performed the analysis.
Facts: During a search of Ogaz, a Police Officer found a large baggie in his pocket which contained a brown powder that looked and smelled like heroin and a white crystal substance that looked like methamphetamine. The Officer weighed the powder and crystals and determined they had a combined weight of 10.5 grams. A presumptive test he performed showed that the powder tested positive for heroin, and the crystals tested positive for methamphetamine.
The Orange County Crime Lab (OCCL or the lab) confirmed the test results. A jury convicted Ogaz of one count each of possessing heroin and methamphetamine for sale. The trial court sentenced him to 68 months in prison.
Ogaz argued that the trial court erred in admitting evidence regarding the OCCL’s drug testing results, without testimony from the person who actually conducted the testing. Ogaz argued that his confrontation rights under the Sixth Amendment.
The drug testing in this case was conducted by Michelle Stevens, a forensic scientist in the controlled substances division of the OCCL who prepared a one-page report that was admitted into evidence over appellant’s objection. The main section of Stevens’ report is entitled, “ANALYTICAL RESULTS AND INTERPRETATIONS.” The report stated that the brown substance recovered from Ogaz had a net weight of 8.463 grams and contained heroin and the other two substances contained methamphetamine.
Stevens signed her name in an area identifying her as the analyst who conducted the testing. Thomas Dickan, who, as Stevens’ supervisor, reviewed the report on May 5, 2017, the day after it was prepared and initialed it.
Stevens did not testify at the trial. Dickan was called to testify about the report and its contents. analyze controlled substances.
The Confrontation Clause of the Sixth Amendment
Ogaz argued that the admission of Stevens’ report and Dickan’s testimony regarding it violated his right “to be confronted with the witnesses against him” under the Sixth Amendment to the United States Constitution. The Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), explained that the Sixth Amendment’s confrontation clause prohibits the admission of “testimonial statements” made by a non-testifying witness unless the witness is unavailable, and the defendant had a prior opportunity for cross-examination. In this case Stevens was not unavailable and there was no prior opportunity for cross-examination. The admissibility of her report turns on whether it was testimonial.
The report was testimonial because it contained the conclusions reached as a result of the testing.
The substantive conclusions Stevens reached as a result of the testing she conducted are contained in the report.
The formal nature of the report and its forensic purpose make it a testimonial document for purposes of the Sixth Amendment.
Conclusions in Stevens’ report were based on her subjective impressions of the evidence she examined and required subjective analysis and comparison and Dickan could not be effectively cross-examined as to what Stevens saw or how she interpreted the information her testing produced.
In closing argument the prosecutor repeatedly ialluded to Stevens’ report and Dickan’s testimony in attempting to persuade the jury that appellant was guilty. The drug testing evidence was used to establish the more fundamental requirement that the substances found in appellant’s possession were in fact prohibited. The scientific nature of the drug testing evidence made it the the most compelling proof on that issue for the jury, and therefore it is at least reasonably possible that evidence contributed to the jury’s verdict. Therefore, the judgment against appellant cannot stand. (See Duvall v. United States, supra, 975 A.2d at pp. 842-848 [improper admission of lab report indicating substance found in the defendant’s vehicle was marijuana was not harmless error in drug case, even though an officer with specialized training detected the odor of marijuana emanating from the vehicle, he identified the substance as “green weed,” and the substance field-tested positive for marijuana].)
The judgment was reversed.