Argued: November 14, 2017
Judgment affirmed. John W. Tebbetts, Esq. (orally), Presque
Isle, for appellant Macie Jones
M. Pluto, Asst. Dist. Atty. (orally), Prosecutorial District
No. 8, Caribou, for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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.
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
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
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.
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.
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. 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.
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.
Confrontation Clause Rights
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." 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
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).
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.
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.
We have not had occasion to consider, in the wake of
Melendez-Diaz, the admission of a lab certificate
identifying a controlled substance. 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
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).
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
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.
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.
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.
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. §
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. §
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. 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.
In terms of notice, all three statutes share the requirement
that the prosecutor provide the defendant with a copy of the
certificate before trial. 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. 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. 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).
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." M.R.U. Crim. P. 16(b)(1), (3)-(5).
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 ...