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State v. Jones

Supreme Court of Maine

January 25, 2018


          Argued: November 14, 2017

          Judgment affirmed. John W. Tebbetts, Esq. (orally), Presque Isle, for appellant Macie Jones

          John M. Pluto, Asst. Dist. Atty. (orally), Prosecutorial District No. 8, Caribou, for appellee State of Maine


          GORMAN, J.

         [¶1] Macie N. Jones appeals from a judgment of conviction for unlawful trafficking of a schedule W drug (Class B), 17-A M.R.S. §§ llO2(1)(A), HO3(l-A)(A) (2017), entered by the trial court (Aroostook County, Stewart, J.) after a jury trial. Jones argues that 17-A M.R.S. § 1112 (2017) is facially unconstitutional and that the court's admission of a lab certificate in lieu of live witness testimony pursuant to that statute was a violation of her right of confrontation. We conclude that section 1112 is facially constitutional, and we affirm the judgment.

         I. BACKGROUND

         [¶2] Viewing the evidence presented at trial in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Cummings, 2017 ME 143, ¶ 12, 166 A.3d 996. On December 16, 2015, an agent with the Maine Drug Enforcement Agency arranged to use a confidential informant to make a controlled purchase of methamphetamine from a man who was the subject of an investigation. The purchase took place in Jones's vehicle, where Jones was present. During the transaction, Jones made various incriminating statements regarding her involvement in producing and selling methamphetamine, including that the drug the informant was purchasing was "better than anything we've made." Jones later admitted to law enforcement that she had been involved with obtaining the ingredients for and producing methamphetamine.

         [¶3] Jones was indicted for unlawful trafficking of a schedule W drug (methamphetamine) (Class B), 17-A M.R.S. §§ 1102(1)(A), HO3(l-A)(A). She pleaded not guilty to the charge.

         [¶4] The court conducted a jury trial on February 3, 2017. In its witness list provided before trial, the State named a forensic chemist as one of the witnesses it "may call" at trial. At trial, the State instead sought admission of the chemist's certificate stating that a drug analysis established that the substance the informant purchased on December 16, 2015, was in fact 136.1 milligrams of methamphetamine. The court admitted the certificate over Jones's objection, reasoning that Jones had not provided ten days' notice of her request for live testimony of the chemist in accordance with 17-AM.R.S. §1112.

         [¶5] The jury found Jones guilty of the offense. The court entered a judgment on the verdict, sentencing Jones to forty-two months in prison with all but fifteen months suspended; two years of probation; and $635 in fines, restitution, and fees. Jones appeals.


         [¶6] The sole matter at issue is the court's admission of the lab certificate identifying the substance exchanged in the controlled purchase as methamphetamine. The court admitted the lab certificate in lieu of the chemist's testimony pursuant to 17-A M.R.S. § 1112, which provides that a drug analysis certificate "is admissible in evidence in a court of the State, and gives rise to a permissible inference . . . that the composition, quality and quantity of the drug or substance are as stated in the certificate, unless, within 10 days['] written notice to the prosecution, the defendant requests that a qualified witness" provide live testimony of those facts.[1] 17-A M.R.S. §1112(1); see State v. Navarro, 621 A.2d 408, 412 (Me. 1993) ("Once the defendant requests a qualified witness, the certificate is neither admissible nor prima facie evidence of the composition, quality, and quantity of the drug or substance stated therein. Once the request is made, the State has the burden of producing a witness who can testify as to the analysis procedures and results." (citation omitted) (quotation marks omitted)). Jones agrees that she did not request, within ten days before trial, that the State produce a live witness to identify the drug, and therefore does not appear to challenge the State's or the court's compliance with section 1112. Rather, Jones contends that section 1112 is facially unconstitutional in that it violates the Confrontation Clause as interpreted by the United States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). See U.S. Const, amend. VI.

         [¶7] We review de novo the constitutionality of a statute, Doe v. Williams, 2013 ME 24, ¶ 11, 61 A.3d 718, giving the statute a "heavy presumption of constitutionality, " League of Women Voters v. Sec'y of State, 683 A.2d 769, 771 (Me. 1996). As the party challenging the facial constitutionality of the statute, it is Jones's burden to establish, beyond a reasonable doubt, that there is "no set of circumstances" in which the statute may operate in a constitutional manner. Guardianship of Chamberlain, 2015 ME 76, ¶ 10, 118 A.3d 229 (quotation marks omitted); see League of Women Voters, 683 A.2d at 771-72.

         A. Confrontation Clause Rights

         [¶8] The Confrontation Clause-applicable to the states through the Fourteenth Amendment-requires that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him."[2] U.S. Const, amends. VI, XIV; see Melendez-Diaz, 557 U.S. at 309; State v. Murphy, 2010 ME 28, ¶ 9, 991 A.2d 35. The Supreme Court has characterized the Confrontation Clause as a "procedural rather than a substantive guarantee, " stating, "It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36, 61 (2004); see Murphy, 2010 ME 28, ¶ 11, 991 A.2d 35. To that end, the Confrontation Clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54.

         [¶9] The Supreme Court has further clarified what is "testimonial" according to the nature and purpose of the evidence, defining "testimony" as any "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51 (quotation marks omitted). Thus, the "core class of testimonial statements" includes (1) "ex parte in-court testimony or its functional equivalent" 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"; (2) "extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and (3) "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. at 51-52 (alteration omitted) (quotation marks omitted).

         [¶10] In Melendez-Diaz, the Supreme Court considered the Confrontation Clause implications of a Massachusetts statute that allowed prosecutors to have admitted in evidence a certificate of the lab analysis identifying the quality, quantity, and type of drugs in lieu of the live testimony of the chemist who performed that analysis. 557 U.S. at 308-09. In that case, the defendant was charged with distributing and trafficking in cocaine. Id. at 308. At trial, the prosecution offered three "certificates of analysis" from forensic analysts at the state laboratory, identifying as cocaine the substance found in the defendant's possession during a search. Id. (quotation marks omitted). In accordance with the statute, the court admitted the certificates as prima facie evidence of the composition, quality, and quantity of the substance analyzed. Id. at 308-09. The defendant was convicted of the offenses without any live testimony as to the type and quantity of drugs seized from him. Id. at 309.

         [¶11] The Supreme Court determined that the certificates-sworn to before a notary public-were "quite plainly affidavits, " and therefore constituted testimonial statements subject to Confrontation Clause protection. Id. at 308, 310. The Court therefore concluded that, as with any other forms of testimony, "[a]bsent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to be confronted with the analysts at trial." Id. at 311 (quotation marks omitted). On that basis, the Supreme Court reversed the defendant's conviction and remanded for a new trial. Id. at 329.

         [¶12] We have not had occasion to consider, in the wake of Melendez-Diaz, the admission of a lab certificate identifying a controlled substance.[3] We now conclude that, in terms of its testimonial nature, the certificate at issue here is legally indistinguishable from that analyzed in Melendez-Diaz. It identifies, after testing, that the substance obtained in the controlled purchase was 136.1 milligrams of methamphetamine. It is also signed and attested to by a State-certified chemist, who prepared the analysis at the request of the Maine Drug Enforcement Agency. In short, it is the type of certificate-or, more precisely, affidavit-that the Supreme Court declared is testimonial in Melendez-Diaz. 557 U.S. at 310; see State v. Tozier, 2015 ME 57, ¶ 20, 115 A.3d 1240 ("Confrontation Clause jurisprudence is concerned with the absence of those witnesses whose actions played a role in the generation of test results."). Because it is testimonial, its admission triggers the protection of the Confrontation Clause, which requires that the attesting person-the State chemist-must have been both unavailable and subject to prior cross-examination by Jones. See Melendez-Diaz, 557 U.S. at 309-10. Here, there is no suggestion in the record that the chemist was unavailable or subject to prior cross-examination by Jones. B. Waiver of Right of Confrontation

         [¶13] That Jones has a constitutional right, as spelled out in Melendez-Diaz, to confront the State's chemist at trial is not the end of the inquiry, however. As the Supreme Court and we have recognized on numerous occasions, a defendant may waive any right, including one of constitutional dimension. See, e.g., Maryland v. Shatzer, 559 U.S. 98, 104 (2OlO);/o/2nsor? v. Zerbst, 304 U.S. 458, 464 (1938); State v. Hill, 2014 ME 16, ¶ 5, 86 A.3d 628; State v. Ericson, 2011 ME 28, ¶ 15, 13 A.3d 777. "Waiver occurs when a defendant voluntarily, knowingly, and intentionally relinquishes or abandons a known right." State v. True, 2017 ME 2, ¶ 14, 153 A.3d 106; see Shatzer, 559 U.S. at 104. Nevertheless, a waiver of a constitutional right need not be express in the record, State v. Murphy, 2015 ME 62, ¶ 21, 124 A.3d 647, and may instead be inferred based on the defendant's conduct given the totality of the circumstances, Ericson, 2011 ME 28, ¶ 16, 13 A.3d 777. See Melendez-Diaz, 557 U.S. at 325-26 & n.10 (mentioning "forfeiture] by silence"); State v. Watson, 2006 ME 80, ¶ 27, 900 A.2d 702 ("As with the right to jury trial, the right to counsel may be waived by a defendant's inaction."); State v. Caulfield, 722 N.W.2d 304, 311 (Minn. 2016) ("[C]onfrontation rights are not among those . . . that require an affirmative waiver in writing or on the record."). A defendant is also not relieved from complying with "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence" just because there is a constitutional right at stake. Ericson, 2011 ME 28, ¶ 17, 13 A.3d 777 (quotation marks omitted).

         [¶14] To verify that a defendant did voluntarily, knowingly, and intentionally relinquish a right, we review any express or implicit factual findings regarding such waiver for clear error, and we review de novo the legal conclusion based on those facts. Hill, 2014 ME 16, ¶ 5, 86A.3d 628. Although it did not phrase it as such, the court in this matter essentially concluded that Jones waived her right to confront the State chemist when she failed to request a live witness at least ten days before trial. Because there is no factual dispute that Jones did not make any such request, the only issue before us is the legal conclusion that her failure to do so constitutes a voluntary, knowing, and intentional waiver.

         [¶15] In Melendez-Diaz, the Supreme Court recognized so-called "notice-and-demand statutes" as a means by which a defendant may waive Confrontation Clause rights. 557 U.S. at 326. The Court characterized notice-and-demand statutes, "[i]n their simplest form, [to] require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial." Id. The Supreme Court approved the use of such notice-and-demand statutes, reasoning that states are "free to adopt procedural rules governing objections, " such statutes maintain the burden on the defendant to raise a timely Confrontation Clause objection, and "[t]here is no conceivable reason" why a defendant cannot be required to exercise her Confrontation Clause rights in advance of trial. Id. at 327 & n. 12.

         [¶16] The State contends that section 1112 constitutes just such a statute, but Jones argues that the provision does not constitute the type of notice-and-demand statute that the Supreme Court sanctioned as a constitutional means for enforcing a defendant's waiver of her Confrontation Clause rights because it does not require the State to inform a defendant of its intent to offer a certificate at trial in lieu of live testimony.

         [¶17] Although the Supreme Court did not purport to sanction every possible form of notice-and-demand statute, it did cite the notice-and-demand statutes of Georgia, Ohio, and Texas as examples of provisions that comply with Confrontation Clause requirements. Id. at 326, 327 n.12; see Ga. Code Ann. §35-3-154.1 (LEXIS through 2017 Regular Sess. of the Gen. Assemb.); Ohio Rev. Code Ann. § 2925.51 (LEXIS through legis. passed by the 132nd Gen. Assemb.); Tex. Code Crim. Proc. Ann. art. 38.41 (LEXIS through 2017 Regular Sess. and 1st C.S., 85th Leg.). We review each of these three statutes deemed constitutional by the Supreme Court, and we compare them to section 1112.[4]

         [¶18] Georgia's statute provides that the prosecutor must serve the defendant with a copy of a lab report "prior to" trial. Ga. Code Ann. § 35-3-154.l(c)-(d). If the defendant objects in writing at least ten days before trial, the court "shall require" the witness to testify in person and the prosecution may not use the report as prima facie evidence of its contents. Ga. Code Ann. § 35-3-154.1(e).

         [¶19] Ohio's notice-and-demand statute also provides that the prosecution must serve the defendant with a copy of the report "prior to" trial. Ohio Rev. Code Ann. § 2925.51(B). If the defendant serves on the prosecution a demand for live testimony within seven days after receipt of the report, the report may not be used as prima facie evidence of its contents. Ohio Rev. Code Ann. § 2925.51(C).

         [¶20] Similarly, Texas's notice-and-demand statute provides that the prosecution must file the certificate of analysis with the court and serve it on the defendant at least twenty days before trial.[5] Tex. Code Crim. Proc. Ann. art. 38.41, § 4. The certificate is not admissible if the defendant files a written objection to the use of the certificate at least ten days before trial. Tex. Code Crim. Proc. Ann. art. 38.41, § 4.

         [¶21] In terms of notice, all three statutes share the requirement that the prosecutor provide the defendant with a copy of the certificate before trial.[6] All three statutes require the prosecution to provide notice of the existence and contents of the report, and to serve the report on the defendant or her counsel before trial, but none specifically requires the prosecution to notify the defendant that it intends to use the report in lieu of live testimony at trial.[7] Ga. Code Ann. § 35-3-154.1(c); Ohio Rev. Code Ann. § 2925.51(B); Tex. Code Crim. Proc. Ann. art. 38.41, § 4. Further, Georgia requires service on the defendant only "prior to" trial, even though it also requires the defendant to demand a live witness within a certain number of days (ten days) before trial.[8] Ga. Code Ann. § 35-3-154.1(c), (e); see Ohio Rev. Code Ann. § 2925.51(B) (requiring service on the defendant "prior to" trial).

         [¶22] Unlike the notice-and-demand statutes of Georgia, Ohio, and Texas, section 1112 does not require the State to serve the defendant with a copy of the certificate of analysis, but another Maine provision- M.R.U. Crim. P. 16-does require the State to provide a copy to the defendant. Rule 16 requires the State to provide automatic discovery to the defendant, including "[a]ny reports or statements of experts, made in connection with the particular case, including results of . . . scientific tests, experiments, or comparisons." M.R.U. Crim. P. 16(a)(2)(G). For a Class B offense such as the one with which Jones was charged, the State must provide such materials at the initial appearance or arraignment, or within fourteen days after that material "comes within the possession or control of the attorney for the State."[9] M.R.U. Crim. P. 16(b)(1), (3)-(5).

         [¶23] Although it is true that section 1112 does not require the State to notify the defendant that it intends to introduce the certificate in lieu of live testimony, neither do the notice-and-demand statutes of Georgia, Ohio, and Texas. Defendant's argument that she was unaware that the State intended to use the certificate, despite having received a copy of it in ...

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