This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1484

 

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Caulfield,

Appellant.

 

 

Filed August 2, 2005

Affirmed

Parker, Judge*

 

Olmsted County District Court

File No. K0-02-2958

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Daniel P. H. Reiff, Assistant County Attorney, 151 S.E. 4th Street, Rochester, MN  55904 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Suite 425, 2221 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Minge, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

In this appeal from conviction of a third-degree controlled substance offense, Scott Caulfield argues that the district court abused discretion by admitting into evidence a Bureau of Criminal Apprehension (BCA) laboratory report stating that the substance seized from him contained cocaine.  He contends that, under the rule of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the report should be considered “testimonial” and that its admission under Minn. Stat. § 634.15 (2000) without the present testimony of the preparing analyst violated his Sixth Amendment right to confrontation.  Because we conclude that, even if the district court abused discretion in admitting the report, its admission was harmless beyond a reasonable doubt, we affirm.

FACTS

 

            Olmsted County police responded to a call from Kathy’s Pub in Rochester to investigate a report of a person selling narcotics.   The police had directed bar employees to call them if a particular person, who was suspected of selling controlled substances, entered the bar.  Two bartenders observed this person entering and leaving the bar two to ten times in a typical evening.  He would leave by the back door with another person, whom he would have met in the bar and who did not usually order a drink.  They would be gone for about ten or fifteen minutes, and he would then return alone.

When the police officer responded to the call, he approached Caulfield, a frequent patron, and asked for identification, which Caulfield provided.  They then stepped outside, where the officer told Caulfield he was investigating the sale of narcotics and asked whether Caulfield had drugs on his person.  Caulfield replied that he did not, but consented to a search of his person.  Inside Caulfield’s left front pants pocket, the officer found a small Tylenol bottle containing six small plastic bags, each containing a white powder.  When the officer asked him what was in the bags, Caulfield replied that it was “drugs” and that it was cocaine.

            The officer testified that he arrested Caulfield and took possession of the Tylenol bottle and its contents.  The same evening, he tested the contents of one of the bags with a standard field  test for cocaine; the substance tested positive for the presence of cocaine.  Another investigating officer, who had eighteen years of police experience, testified that the following day, he retrieved the evidence bags from the evidence technician.  He unsealed them, weighed the substance separately from the bags, and performed another field test on the substance.  That test also produced a positive result for cocaine.  He then repackaged the substance in a single evidence bag and sent it to the BCA for further testing.  The BCA test produced a laboratory report stating that the substance weighed 2.2 grams and contained cocaine.  The laboratory report was signed and certified as accurate by the analyst, a forensic scientist who conducted the test.

The state charged Caulfield by amended complaint with a third-degree controlled-substance crime under Minn. Stat. § 152.023, subd. 1(1) (2000) for sale of a mixture containing a narcotic drug, and a fifth-degree controlled substance crime under Minn. Stat. § 152.025, subd. 2(1) (2000) for possession of a mixture containing a controlled substance.  The district court held a bench trial after Caulfield waived his right to a jury trial.  At trial, Caulfield challenged the admission of the BCA report without the testimony of the analyst who prepared it.  He argued that the report was “testimonial” under the rule of Crawford  v. Washington, 541 U.S. 36, 59-62, 124 S. Ct. 1354, 1369-71 (2004), and that its admission without the analyst’s testimony under the Minnesota notice-and-demand statute, Minn. Stat. § 634.15 (2000), violated his Sixth Amendment right to confrontation.  The district court admitted the report, and Caulfield was convicted of controlled substance crime in the third degree and the lesser-included offense.  This appeal followed.

D E C I S I O N

 

            A district court’s evidentiary rulings lie within its sound judgment and will not be disturbed absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  If the district court has erred in admitting evidence, this court determines whether a reasonable possibility exists that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  But if an evidentiary ruling involves constitutional error, the reviewing court looks to the basis of the verdict and will not require a new trial if the error is harmless beyond a reasonable doubt.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  U.S. Const. amend. VI.  The Minnesota Constitution affords the same right; the analysis is the same under both provisions.  See Minn. Const. art. I, § 6.

Minn. Stat. § 634.15 (2000) allows, in a criminal trial, the admission into evidence of “facts and results of a laboratory analysis or examination” that are “prepared and attested by the person performing the laboratory analysis or examination” and conducted in a laboratory operated or authorized by the BCA.  The statute provides that, if the defendant wishes to request testimony by the person who performed the test, the defendant must give the state notice ten days in advance of the request that the analyst testify at trial, in person, on behalf of the state.  Id., subd. 2.

             Caulfield contends that the district court abused discretion by admitting the laboratory report under Minn. Stat. § 634.15 without the testimony of the preparing analyst because the report is “testimonial” under Crawford v. Washington, 541 U.S. 36, 59-62, 124 S. Ct. 1354, 1369-71 (2004).  He further argues that the admission of the report violated his Sixth Amendment right to confront witnesses against him.

In Crawford, the United States Supreme Court reexamined the admissibility of out-of-court statements of unavailable witnesses in a criminal trial through the lens of the Sixth Amendment.  Crawford, 541 U.S. at 59-62, 124 S. Ct. at 1369-71.  In so doing, the Court rejected its previous analysis in Ohio v. Roberts, which had allowed the admission of such out-of-court statements, provided that they bore sufficient indicia of reliability.   Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980), abrogated by, Crawford, 541 U.S. at 62-65, 124 S. Ct. at 1371-72.  To satisfy the Roberts test, a statement needed either to fall within a “firmly rooted hearsay exception” or to bear “particularized guarantees of trustworthiness.”  Id.

            The Supreme Court in Crawford stated that the Sixth Amendment right to confront one’s accuser cannot be satisfied by the reliability analysis in Roberts when “testimonial” statements are at issue.  Crawford, 541 U.S. at 61-63, 124 S. Ct. at 1370-71.  Rather, the Confrontation Clause acts as a procedural guarantee which “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”  Id. at 61, 124 S. Ct. at 1370.  Thus, the Court held that the Sixth Amendment bars out-of-court, “testimonial” statements from admission into evidence unless the hearsay declarant is unavailable and the defendant has had a prior opportunity to examine the declarant.  Id. at 68, 124 S. Ct. at 1374.

The Court declined to provide a comprehensive definition of “testimonial,” but furnished “various formulations of [a] core class of ‘testimonial’ statements.”  Id.at 51, 124 S. Ct. at 1364.  These formulations include: (1) “ex parte in-court testimony or its functional equivalent,” including affidavits, custodial examinations, prior testimony not subject to cross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements” of a kind “contained in formalized testimonial materials”; and (3) statements 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. at 51-52, 124 S. Ct. at 1364.   The Court also specified that the term applied, “at a minimum,” to prior testimony at a preliminary hearing, previous trial, or grand jury proceedings, and police interrogations.  Id. at 68, 124 S. Ct. at 1374.

The Minnesota Supreme Court has not yet articulated a comprehensive definition of “testimonial” statements under the rule in Crawford.  InState v. Martin, the supreme court held that the district court did not abuse discretion by admitting a victim’s statement under the dying declaration exception to the Crawford rule because the Sixth Amendment incorporates this exception.  Martin, 695 N.W.2d 578, 585 (Minn. 2005).  The supreme court stated,

We are not unsympathetic to the uncertainty that has been generated by the [United States] Supreme Court’s refusal to articulate a comprehensive definition of “testimonial” statements.  But, we need not decide in this case whether [the statement] was testimonial and, therefore, this court must also “leave for another day” any effort to discern the Supreme Court’s meaning of “testimonial.”

 

Id. at 584-85.  InState v. Burrell, the supreme court observed that the record was insufficient to make an informed decision about whether the statements of an unavailable declarant were “testimonial” within the meaning of Crawford and remanded for the district court to receive foundational evidence “and then weigh all relevant factors as it determines whether the state has proven that the statement may be admitted consistent with the Sixth Amendment and Crawford.”  Burrell, 697 N.W.2d 579, 600 (Minn. 2005).  In so doing, the supreme court noted the state’s burden of proof that the hearsay statement did not violate the defendant’s Sixth Amendment rights.  Id.(citing State v. King, 622 N.W.2d 800, 807 (Minn. 2001)).

In this case, the basis for admitting the laboratory report without the testimony of the preparing analyst resides in the notice-and-demand statute, rather than a traditional hearsay exception under Minnesota law.  See Minn. R. Evid. 803(6) 1989 comm. cmt.  “Documents prepared solely for litigation purposes do not qualify under [the business records] exception.”  Minn. R. Evid. 803(8) (allowing evidence of public records or reports as hearsay exception, but “excluding . . . in criminal cases . . . matters observed by police officers and other law enforcement personnel”).

Although Minnesota appellate courts have not yet addressed the issue of whether a laboratory report may be considered testimonial under Crawford,other jurisdictions have addressed the issue with varying results.  Compare City of Las Vegas v. Walsh, 91 P.3d 591, 595 (Nev. 2004) (holding, in trial for driving under influence of alcohol, that affidavit of nurse who drew blood from defendant for blood-alcohol test, which was offered to prove presence of alcohol and was prepared solely for use at trial, was testimonial), and People v. Rogers, 780 N.Y.S.2d 393, 397 (N.Y. App. Div. 2004) (holding, in prosecution for criminal sexual conduct, that test of victim’s blood alcohol, which directly related to her capability to consent, was testimonial because it was initiated by state and generated by desire to discover evidence against defendant), with People v. Johnson, 18 Cal. Rptr. 3d 230, 233, (Cal. Ct. App. 2004) (holding, in probation revocation proceeding governed by limited due process rights, that laboratory report analyzing cocaine was not testimonial because it did not function as equivalent of in-court testimony), review denied (Cal. Nov. 10, 2004), and State v. Dedman, 102 P.3d 628, 636 (N.M. 2004) (holding that blood-alcohol report was nontestimonial because it was “routine, non-adversarial, and made to ensure an accurate measurement” and therefore differed from other examples of testimonial hearsay evidence identified in Crawford).  See generally Paul C. Giannelli, Admissibility of Lab Reports: The Right of Confrontation Post-Crawford, Crim. Justice, Fall 2004, at 26 (discussing implications of Crawford and evidentiary issues affecting admissibility of lab reports).

            We recognize, without deciding the issue, that, should the laboratory reports be considered “testimonial” under the criteria set forth in Crawford, their introduction under Minn. Stat. § 634.15 without the testimony of the analyst who prepared them may implicate a defendant’s Sixth Amendment rights.  See Burrell, 579 N.W.2d at 600 (noting that, in remand to determine whether statements of unavailable declarant were “testimonial,” state must prove that statements could be admitted consistent with Crawford and the Sixth Amendment).

Even assuming, however, that the district court abused discretion in admitting the report, we conduct a harmless-error analysis to determine whether the admission of that evidence was harmless beyond a reasonable doubt.  See State v. Courtney, 696 N.W.2d 73, 79 (Minn. 2005) (“Although the [United States Supreme] Court in Crawford did not discuss the applicability of harmless error analysis, it is well settled that violations of the Confrontation Clause are subject to such analysis.”).  In Courtney, the supreme court affirmed a defendant’s conviction for domestic assault, holding that any error in admitting the videotaped statement of the complainant’s six-year-old child was harmless beyond a reasonable doubt when the statement was not highly persuasive, its use was limited, the defense was able to counter the statement, and the evidence against the defendant was strong.  Id. at 81.

 A harmless error analysis considers “the importance of the witness’[s] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”  Jones, 556 N.W. 2d at 910 (quotation omitted); see also King, 622 N.W.2d at 811 (stating that, in completing harmless error analysis, inquiry is not whether defendant would have been convicted without evidence, but whether verdict was “surely unattributable” to error).

            Caulfield argues that any error in admitting the BCA report was not harmless beyond a reasonable doubt because conviction of third-degree controlled substance crime requires proof that the substance seized is, in fact, a narcotic drug.  See Minn. Stat. § 152.01, subd. 10 (2000) (defining narcotic drug); Minn. Stat. § 152.023 (2000) (stating that person is guilty of third-degree controlled substance crime if that person unlawfully sells one or more mixtures containing narcotic drug).   Generally, a substance should be scientifically tested so as to establish beyond reasonable doubt an essential element of the charged crime.  State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994).  But when a substance is not scientifically tested, “circumstantial evidence and officer testimony” may be presented in an attempt to prove the identity of the substance.  State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004).  A conviction based on circumstantial evidence will be upheld if the reasonable inferences from that evidence are consistent with the defendant’s guilt and inconsistent with any rational hypothesis other than guilt.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).

In this case, the arresting officer testified that, when Caulfield was arrested, the officer performed a field test on the contents of one of the six plastic bags, which tested positive for cocaine.  Another officer testified that the next day, he opened the six bags, removed the substance from them, and performed another field test on the powder.  This also produced a positive result for cocaine.  In addition, a police officer testified that Caulfield told the police immediately following his arrest that the substance in the Tylenol bottle was cocaine.  Caulfield did not object to this testimony, and he did not testify at trial.  Although a defendant’s “own personal belief of and representations of the substance as a controlled substance” may be insufficient by itself to prove the identity of a substance, Olhausen, 681 N.W.2d at 27, it may confirm an identification.  And Minn. Stat. § 152.023, subd. 1(1), does not require that the controlled substance have a certain weight for conviction of third-degree controlled-substance crime.  Finally, Caulfield’s possession of the substance in small bags is consistent with packaging the drug for sale and furnishes evidence that the substance was cocaine.  Although Caulfield could have similarly packaged a placebo substance, the two field tests effectively negate that possibility.  We also note that Caulfield would not have the incentive to misstate the nature of the substance to a police officer that he would to a buyer.

The evidence established that the substance in Caulfield’s possession tested positive for cocaine on two field tests, that it was packaged in small bags consistent with the sale of drugs, that Caulfield had been observed in short-term encounters consistent with drug transactions, and that Caulfield made an unrebutted statement to police that the substance was cocaine.  Thus, the circumstantial evidence in support of Caulfield’s conviction is very strong.  And in this case, unlike Olhausen, the state needed only to prove the identity of the substance, rather than both its identity and weight.  See Olhausen, 681 N.W.2d at 26 (upholding conviction when sufficient nonscientific evidence exists to establish substance’s identity and weight).  Therefore, we conclude that any error in admitting the BCA test result without the analyst’s testimony was harmless beyond a reasonable doubt, and we affirm.

            Affirmed.