District of Columbia Court of Appeals Reports
THOMAS v. U.S., 03-CF-1125 (D.C. 12-28-2006) MICHAEL
THOMAS, APPELLANT, v. UNITED STATES, APPELLEE. No.
03-CF-1125. District of Columbia Court of Appeals. Argued
February 1, 2005. Decided December 28, 2006.
Appeal from the Superior Court of the District of Columbia
(F-5011-02) (Hon. Rafael Diaz, Trial Judge).
Edward DeV. Bunn for appellant.
Elizabeth H. Danello, Assistant United States Attorney,
with whom Roscoe C. Howard, Jr., United States Attorney at
the time the initial brief was filed, Kenneth L. Wainstein,
United States Attorney at the time the supplemental brief
was filed, John R. Fisher, Assistant United States Attorney
at the time the briefs were filed, and Roy W. McLeese III,
Thomas J. Tourish, Jr., and David B. Goodhand, Assistant
United States Attorneys, were on the brief, for appellee.
Andrea Roth, with whom James Klein and Samia Fam were on
the brief, on behalf of the Public Defender Service as
amicus curiae.
Before REID and GLICKMAN, Associate Judges, and TERRY,
Senior Judge.[fn*]
[fn*] Judge Terry was an Active Judge of the Court at the
time this case was argued. His status changed to that of
Senior Judge on February 1, 2006.
GLICKMAN, Associate Judge.
The Sixth Amendment to the Constitution guarantees the
accused in a criminal prosecution the right to be
confronted with the witnesses against him. The
Confrontation Clause makes no exception for expert
witnesses. In this appeal from a conviction for distributing
cocaine, we hold that the Clause was violated when the
prosecution introduced a Drug Enforcement Administration
chemist’s written expert testimony against appellant
without calling the chemist to appear and testify in person.
The chemist’s written statement was offered in evidence at
appellant’s trial pursuant to D.C. Code § 48-905.06
(2001), and its admission conformed to the then-prevailing
understanding of the Confrontation Clause and the statute.
See Howard v. United States, 473 A.2d 835 (D.C. 1984).
After appellant’s trial, however, the Supreme Court
dramatically transformed Confrontation Clause jurisprudence
in Crawford v. Washington, 541 U.S. 36 (2004). Fidelity to
Crawford obliges us to recognize that Howard has been
superseded. Although we do not hold D.C. Code §
48-905.06 unconstitutional in light of Crawford, we are
obliged to re-interpret the statute so as to preserve its
constitutionality. As we now construe § 48-905.06,
it still authorizes the government to introduce a chemist’s
report without calling the chemist in its case-in-chief,
but only so long as the record shows a valid waiver by the
defendant of his confrontation right. Absent a valid waiver,
which usually must be express but under some circumstances
may be inferable from a defendant’s failure to request the
government to produce the author of the report, the
defendant enjoys a Sixth Amendment right to be confronted
with the chemist in person.
Appellant does not gain a new trial by virtue of our
holding. Because appellant did not make a Confrontation
Clause objection at trial, his invocation of the Clause on
appeal is subject to the rigors of plain error review. See
Super. Ct. Crim. R. 52 (b). His claim does not survive this
scrutiny. While we find error that is (now) plain and that
affected appellant’s substantial rights, we cannot conclude
that the error seriously affected the fairness, integrity
or public reputation of the judicial proceeding. For that
reason, and because we find no merit in appellant’s other
claims of error, we affirm his conviction.
I.
Appellant was arrested late on the evening of August 2,
2002, in a police “buy-and-bust” operation in the Dupont
Circle area of Washington, D.C. According to the
government’s evidence at trial, undercover Officer Jerome
McClinton approached appellant and asked him if he had any
“20s.” In response, appellant displayed several small
ziplock bags, each of which contained a white, rocky
substance. Officer McClinton took two of the bags out of
appellant’s hand and gave him twenty dollars in prerecorded
police funds. The officer then walked away to meet Officer
Stephanie Garner, who had watched the transaction from a
nearby unmarked car. Officer Garner received the two
ziplocks from Officer McClinton, field-tested their
contents, and obtained a positive reaction signaling the
probable presence of cocaine. Meanwhile, Officer McClinton
broadcast a lookout for appellant.[fn1]
The police looked for appellant for about half an hour
before Officer McClinton spotted him again in the vicinity
of Dupont Circle and pointed him out to two officers on the
arrest team. Upon being confronted by those officers,
appellant tried to run away. There ensued a brief chase,
which ended when the officers found appellant hiding under a
car in a nearby alley. Appellant closely matched the
lookout description,[fn2] and Officer McClinton drove by
and confirmed that he was the right suspect. The police
found no marked money or drugs in appellant’s possession,
though they did recover cash totaling $194.80.
After appellant was taken into custody, Officer Garner
returned to the Third District police station, where she
put the two ziplocks given to her by Officer McClinton in a
tamper-proof, heat-sealed envelope. Officer Garner
deposited this envelope in a lockbox for delivery to a Drug
Enforcement Administration (DEA) laboratory, where a
forensic chemist would be assigned to analyze the contents
of the ziplocks and report the results in writing for use
at appellant’s trial.
Following his arrest, appellant was indicted on one count
of distributing a controlled substance, cocaine, in
violation of D.C. Code § 48-904.01 (a)(1) (2001).
Several months before trial, the government served on
appellant’s counsel a “Notice of Compliance Pursuant to 48
D.C. Code § 905.06,” together with a DEA chemist’s
report concerning the contents of the ziplocks received
from Officer Garner. The Notice informed appellant that the
government intended to offer the report in evidence against
him, and it outlined the procedures to be followed if
appellant elected to subpoena the DEA chemist for
examination at trial. “Pursuant to a long-standing
arrangement,” the Notice advised, “chemists under subpoena
for a particular day are available on call and, because
they must come to court from Largo, Maryland, require two
hours notice to arrive in the courtroom.”
Appellant did not subpoena the chemist, and at trial the
government offered the chemist’s report in evidence in its
case-in-chief without calling the chemist to testify in
person.[fn3] The report consisted of a “Certified Report of
Controlled Substance Analysis,” which reported the
chemist’s findings; a backup worksheet containing the
chemist’s handwritten notes on the analysis; and a “Report
of Drug Property Collected, Purchased or Seized” signed by
Officer Garner and DEA personnel, which recorded the chain
of custody of the two ziplocks from the Metropolitan Police
Department to the DEA.[fn4] In the primary document, the
Certified Report of Controlled Substance Analysis, the
chemist reported her conclusion that the white rocky
substance in the two ziplock bags had a net weight of .15
grams and was 79% cocaine base.[fn5] In addition, for the
express purpose of complying with D.C. Code §
48-905.06, the Certified Report included the following
unsworn, preprinted “boiler-plate” statement signed by the
chemist:
I attest and certify that I am a trained chemist employed
by the United States Department of Justice, Drug
Enforcement Administration, that I am charged with an
official duty to perform analyses of suspected controlled
substances, and that I have legal custody of this report.
All suspected controlled substance containers received by
the Drug Enforcement Administration chemists bear unique
Drug Enforcement Administration laboratory numbers. When
I received the container(s) bearing the laboratory
number(s) set out above, I inspected the container(s) and
verified that a sealed condition existed and then properly
analyzed the contents for the presence of controlled
substances by methods which are reliable and relevant to
the identification of a controlled substance which
includes procedures generally accepted in the forensic
science community. These methods employed chemical
reagents and/or analytical instruments which were free of
contamination and were operating properly.
The analyses that I conducted were accomplished while
safeguarding the chain of custody of the substances being
analyzed. The results of my analyses are accurately set
forth on this official report. After I completed my
analyses, I placed the original container(s) and contents
(except for the substance(s) consumed or those removed
for other purposes) into a separate container which I then
sealed in such a manner that any tampering would be
readily evident. In the case of evidence submitted by the
Metropolitan Police for the District of Columbia (MPDC),
the officially sealed container bearing the above
laboratory number(s) was returned to the evidence vault
maintained by the MPDC for proper storage.
Appellant’s counsel objected to the admission of the DEA
chemist’s report solely on the ground that the government
had not “laid the proper foundation.” The prosecutor
responded that no foundation was necessary because the
documents were “self-authenticating” and properly admitted
“as long as we filed a Notice of Compliance, which we
did.”[fn6] Appellant’s counsel voiced no additional
objection to the chemist’s report, and it was admitted in
evidence.
Appellant did not challenge the accuracy of the chemist’s
report. His defense was based on a claim of mistaken
identification, i.e., appellant claimed that he was not the
person who sold the two ziplocks to Officer McClinton. The
jury rejected this defense and found appellant guilty as
charged.
II.
Appellant now contends that his conviction must be
overturned because the admission in evidence of the DEA
chemist’s report in the absence of live testimony from the
chemist who wrote it violated his Sixth Amendment “right .
. . to be confronted with the witnesses against him. . . .”
U.S. CONST. amend. VI. Appellant grounds this claim on
Crawford, supra, which effected major changes in
Confrontation Clause jurisprudence. The Supreme Court
decided Crawford nine months after appellant’s trial.
Nonetheless, because appellant did not raise a
Confrontation Clause objection at trial, we deem his claim
to be subject to the strictures of “plain error” review.
See Johnson v. United States, 520 U.S. 461, 466-67 (1997);
Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006).
Under the test for plain error, appellant must show (1)
that the admission of the chemist’s report was “error,” (2)
that the error is “plain,” and (3) that it affected
appellant’s “substantial rights.” Johnson, 520 U.S. at 467
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
“If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Id. (internal quotation marks and citations omitted). We
consider each of these four conditions in turn.[fn7]
A. Did the Admission of the Chemist’s Report Violate the
Confrontation Clause?
In offering the DEA chemist’s report in evidence at
appellant’s trial without calling the chemist to testify,
the prosecution relied on a statute enacted twenty-five
years ago for the purpose of “reliev[ing] . . . chemist[s]
responsible for analyzing controlled substances from the
necessity of appearing at trial” when the chain of custody
and the results of the analysis “are not in dispute.”
Council of the District of Columbia, Committee on the
Judiciary, Report on Bill 4-123, “D.C. Uniform Controlled
Substances Act of 1981,” at 37 (Apr. 8, 1981). To achieve
that purpose, the statute, D.C. Code § 48-905.06
(formerly D.C. Code § 33-556), provides as follows:
In a proceeding for a violation of this chapter, the
official report of chain of custody and of analysis of a
controlled substance performed by a chemist charged with
an official duty to perform such analysis, when attested
to by that chemist and by the officer having legal
custody of the report and accompanied by a certificate
under seal that the officer has legal custody, shall be
admissible in evidence as evidence of the facts stated
therein and the results of that analysis. A copy of the
certificate must be furnished upon demand by the defendant
or his or her attorney in accordance with the rules of the
Superior Court of the District of Columbia or, if no
demand is made, no later than 5 days prior to trial. In
the event that the defendant or his or her attorney
subpoenas the chemist for examination, the subpoena shall
be without fee or cost and the examination shall be as on
cross-examination.
It was not long before the constitutional issue raised by
this statute came before us. The appellant in Howard,
supra, was convicted of possessing and distributing heroin.
On appeal, he contended that the admission against him in
the government’s case-in-chief of a DEA chemist’s written
report in lieu of the chemist’s live testimony violated his
Sixth Amendment right to be confronted by the witnesses
against him. Relying on Ohio v. Roberts, 448 U.S. 56, 66
(1980), which instructed that the Confrontation Clause
allows the court to admit an unavailable witness’s
out-of-court statement against a defendant so long as the
statement bears “adequate `indicia of reliability,'”[fn8]
we rejected appellant’s claim. We found no Sixth Amendment
violation because the chemist’s reports, which we said were
properly admitted pursuant to both D.C. Code §
33-556 and the “business record” exception to the rule
against hearsay,[fn9] were “sufficiently trustworthy to
satisfy the purpose of the Confrontation Clause.” Howard,
473 A.2d at 839.[fn10] Although the chemist in Howard
actually was available to testify in person, we excused his
absence, citing a statement in Roberts that the usual
prerequisite of the declarant’s unavailability may be
relaxed where “the utility of trial confrontation” is
perceived to be “remote.” Id.; see Roberts, 448 U.S. at 65
n. 7 (citing Dutton v. Evans, 400 U.S. 74 (1970)). Indeed,
we reasoned, the fact that the chemist was available
“effectively preserved” the defendant’s right of
confrontation because the defendant was “free” to subpoena
the chemist himself. Howard, 473 A.2d at 839.
The reliability-based test of Roberts for determining
whether the Sixth Amendment requires confrontation thus was
the principal foundation of our decision in Howard. That
foundation was removed when the Supreme Court overruled
Roberts in Crawford. In light of that overruling, Howard’s
constitutional holding no longer can be considered binding
precedent. See Kleinbart v. United States, 604 A.2d 861, 870
(D.C. 1992) (“When intervening constitutional rulings
necessitate a change in prior law, a division of this court
is empowered to recognize that earlier decisions no longer
have force.”); see also Allison v. United States, 623 A.2d
590, 592 (D.C. 1993) (“To the extent that its
[constitutional law] decisions may be inconsistent with
ours, we must defer to the Supreme Court. . . .”). Crawford
requires us to consider afresh whether the Confrontation
Clause permits the prosecution to introduce a DEA chemist’s
report against a defendant without calling the chemist in
its case-in-chief.
In Crawford, the Supreme Court revised its Confrontation
Clause jurisprudence “to reflect more accurately the
original understanding of the Clause.” 541 U.S. at 60. In
so doing, the Court held that “testimonial” statements of
witnesses absent from trial may be admitted against a
criminal defendant “only where the declarant is
unavailable, and only where the defendant has had a prior
opportunity to cross-examine” the declarant. Id. at 59
(emphasis added); see also id. at 68 (“Where testimonial
evidence is at issue, however, the Sixth Amendment demands
what the common law required: unavailability and a prior
opportunity for cross-examination.”). The Court squarely
rejected the alternative Roberts approach, which “allows a
jury to hear evidence, untested by the adversary process,
based on a mere judicial determination of reliability.” Id.
at 62. As the Court explained:
Where testimonial statements are involved, we do not
think the Framers meant to leave the Sixth Amendment’s
protection to the vagaries of the rules of evidence, much
less to amorphous notions of “reliability.” . . .
Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation. To
be sure, the Clause’s ultimate goal is to ensure
reliability of evidence, but it is a procedural rather
than a substantive guarantee. It commands, not that
evidence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of
cross-examination. . . .
Dispensing with confrontation because testimony is
obviously reliable is akin to dispensing with jury trial
because a defendant is obviously guilty. This is not what
the Sixth Amendment prescribes.
Id. at 61-62.
With its declaration that the Confrontation Clause is not
subject to “the vagaries of the rules of evidence,” the
Court also rejected the proposition, embraced in Roberts,
that the right of confrontation is limited by “firmly
rooted” exceptions to the hearsay rule. “The text of the
Sixth Amendment does not suggest any open-ended exceptions
from the confrontation requirement to be developed by the
courts.” 541 U.S. at 54. While several hearsay exceptions
had become established before 1791, when the Sixth
Amendment was adopted, the Court found “scant evidence”
that such exceptions ever “were invoked to admit testimonial
statements against the accused in a criminal case.” Id. at
56 (emphasis in original).[fn11] Rather, as the Court
observed,
Most of the hearsay exceptions covered statements that by
their nature were not testimonial — for example,
business records or statements in furtherance of a
conspiracy. We do not infer from these that the Framers
thought exceptions would apply even to prior testimony.
Id. See also Davis v. Washington, 122 S. Ct. 2266 (2006)
(holding that testimonial statements are subject to the
requirements of the Confrontation Clause even if they are
otherwise admissible under the hearsay exception for
excited utterances). In short, as the Court succinctly
stated in Davis:
“Roberts condition[ed] the admissibility of all hearsay
evidence on whether it falls under a `firmly rooted
hearsay exception’ or bears `particularized guarantees of
trustworthiness.'” Crawford, 541 U.S. at 60 (quoting
Roberts, 448 U.S. at 66). We overruled Roberts in Crawford
by restoring the unavailability and cross-examination
requirements.
126 S. Ct. at 2275 n. 4.
Thus, Crawford announced a per se rule: the Confrontation
Clause bars the government from introducing testimonial
statements at trial against a criminal defendant without
calling the declarant to testify in person, unless the
declarant is unavailable and the defendant had a prior
opportunity to cross-examine the declarant, regardless of
how reliable the testimonial evidence is perceived to be or
whether it fits within a recognized hearsay exception
(other than, possibly, the exception for dying
declarations, see Crawford, 541 U.S. at 56 n. 6).
“A critical portion of this holding . . . is the phrase
`testimonial statements.'” Davis, 126 S. Ct. at 2273. In
Davis the Court answered a question left open in Crawford
and held that only testimonial statements “cause the
declarant to be a `witness’ within the meaning of the
Confrontation Clause.” Id. “It is the testimonial character
of the statement that separates it from other hearsay that,
while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.” Id.
Whether it was error to admit the DEA chemist’s report at
appellant’s trial turns, therefore, on whether the report
was “testimonial.” While the Supreme Court has declined “to
spell out a comprehensive definition of `testimonial'”
suitable for all cases, Crawford, 541 U.S. at 68, it has
furnished ample guidance for present purposes. As the Court
said in Crawford, looking to both history and
constitutional text, the Confrontation Clause “applies to
`witnesses’ against the accused — in other words,
those who `bear testimony.'” Id. at 51 (citation omitted).
And “[t]estimony,” the Court noted, “is typically `[a]
solemn declaration or affirmation made for the purpose of
establishing or proving some fact.'” Id. (citation
omitted). So, for example, “[a]n accuser who makes a formal
statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance
does not.” Id. The Court cited three useful “formulations
of this core class of `testimonial’ statements”:
— “`ex parte in-court testimony or its functional
equivalent — that is, material 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'”;
— “`extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions'”;
— “`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 (citations omitted).[fn12] Subsequently, in
Davis, the Supreme Court recognized that statements by
witnesses in response to police inquiry are testimonial so
long as “the primary purpose . . . is to establish or prove
past events potentially relevant to later criminal
prosecution.” 126 S. Ct. at 2274. Statements that satisfy
these tests need not be under oath, Crawford, 541 U.S. at
52, nor need they be made in response to official
interrogation, Davis, 126 S. Ct. at 2274 n. 1,[fn13] in
order to be deemed testimonial.
Under every definition of “testimony” and “testimonial” in
Crawford, as well as the “primary purpose” test employed in
Davis, the DEA chemist’s report in this case constituted a
“core” testimonial statement subject to the requirements of
the Confrontation Clause. The DEA chemist, a forensic
expert employed by a law enforcement agency, was tasked by
the government to provide critical expert witness testimony
for use against appellant at his criminal trial. As
envisioned by D.C. Code § 48-905.06, the chemist’s
ex parte report was designed to serve as this testimony. In
form and content, the report was a formal and solemn
“attestation” — an affidavit, except that it was
unsworn — introduced by the prosecution in lieu of
the chemist’s live testimony to prove an essential element
of the charged offense. In this “unsworn affidavit,” the
chemist attested — in conclusory fashion — to
the identity and quantity of the controlled substance
seized from appellant as revealed by her testing, chain of
custody, her qualifications and duties as a DEA chemist,
the reliability of her testing methods and procedures,
their general acceptance in “the forensic science
community,” and the purity of the chemical reagents and the
operability of the analytical instruments that she used in
conducting her tests. The use of such ex parte affidavits
to secure criminal convictions was “the principal evil at
which the Confrontation Clause was directed.” Crawford, 541
U.S. at 50. We agree with amicus that “it is difficult to
imagine a statement more clearly testimonial.” Brief of
Amicus Curiae at 5.
The government argues that the DEA chemist’s report is not
testimonial because, per our 1984 decision in Howard, it
fits within this jurisdiction’s hearsay exception for
business records, and therefore represents “a type of
statement Crawford expressly recognizes is not
testimonial.” Supplemental Brief of Appellee at 14. We are
not persuaded by this argument, which we think
fundamentally misreads the Supreme Court’s opinion. As we
explained earlier, in overruling Roberts, Crawford divorced
the Confrontation Clause from the rules of hearsay. It is
true that the Court observed that “[m]ost of the hearsay
exceptions [recognized in 1791] covered statements that by
their nature were not testimonial — for example,
business records. . . .” 541 U.S. at 56. But this
observation about the historical business records exception
does not mean that everything qualifying as a “business
record” now is automatically non-testimonial for
Confrontation Clause purposes.
As an historical matter, the exception in 1791 was a very
narrow one. See generally 5 John Henry Wigmore, Evidence in
Trials at Common Law, §§ 1518-19 (1974 ed.).
In Crawford, the Supreme Court found no evidence that the
historical business records exception (or any other
historical exception apart from that for dying declarations)
ever had been “invoked to admit testimonial statements
against the accused in a criminal case,” nor any indication
that the Framers thought it could be so used. 541 U.S. at
56 (emphasis in original). Traditionally, the historical
business records exception did not encompass records
prepared for use in litigation, let alone records produced
ex parte by government agents for later use in criminal
prosecutions. See, e.g., United States v. Smith, 172 U.S.
App. D.C. 297, 306, 521 F.2d 957, 966 (1975) (discussing
the generally accepted “litigation records” doctrine that
would “deny the business records exception to any document
prepared with an eye toward litigation when offered by the
party responsible for making the record.”). If, in some
jurisdictions, the exception has been enlarged in modern
times to include such records, the Supreme Court made it
clear enough in Crawford that the Sixth Amendment right of
confrontation has not shrunk as a result:
Involvement of government officers in the production of
testimony with an eye toward trial presents unique
potential for prosecutorial abuse — a fact borne
out time and again throughout a history with which the
Framers were keenly familiar. This consideration does not
evaporate when testimony happens to fall within some
broad, modern hearsay exception, even if that exception
might be justifiable in other circumstances.
541 U.S. at 56 n. 7.
Thus, the Supreme Court has defined “testimonial” in
functional rather than categorical terms. Broadly speaking,
the Court has focused in Crawford and Davis on the primary
anticipated or intended use of the statement, not on
whether the statement qualifies as an exception to the rule
against hearsay or falls into some other arbitrary
testimonial category. It is true that most documents are
not testimonial if they qualify as business records,
because most such documents are created for ordinary
business purposes unrelated to their potential use by the
government in a criminal prosecution. Under the Federal
Rules of Evidence, for example, a record cannot qualify as
a business record if it was prepared for purposes of
litigation. See, e.g., United States v. Feliz, No.
02-1665-cr, 2006 U.S. App. LEXIS 26604 at *19 (2d Cir. Oct.
25, 2006, as amended Nov. 9, 2006).[fn14] But where a
document is created primarily for the government to use it
as a substitute for live testimony in a criminal
prosecution, the fact that the document might happen to
fall within the jurisdiction’s business records exception
to the hearsay rule does not render the document
non-testimonial. Accordingly, because DEA chemist’s reports
are created expressly for use in criminal prosecutions as a
substitute for live testimony against the accused, such
reports are testimonial, whether or not they happen to meet
this jurisdiction’s definition of a business record. See
State v. Caulfield, 722 N.W.2d 304, 309-10 (Minn. 2006)
(holding that state Bureau of Criminal Apprehension
laboratory report, offered at trial to prove that substance
seized from defendant was cocaine, “was clearly prepared
for litigation” and was testimonial).[fn15]
Citing Howard, 473 A.2d at 839, the government also argues
that the DEA chemist’s report should not be treated as
testimonial for Confrontation Clause purposes because it is
“an objective report of [an] analysis conducted according
to standard scientific practices” by scientists who
— though they are employed by the Department of
Justice, i.e., the prosecuting authority — have no
“motive or opportunity . . . to falsify” their results.
Supplemental Brief of Appellee at 17-18. “None of the
historical examples of ex parte testimony discussed in
Crawford involved such neutral, scientific evidence,” the
government asserts. Id. at 18. Such broad statements are
open to question; though we do not doubt the overall
integrity, competence and disinterestedness of DEA
chemists, there have been numerous reports in the years
since Howard indicating that government forensic
laboratories are not immune from problems of dishonesty,
sloppiness, poor training, bias, unsound methodology, and
scientific or other error.[fn16] But the neutrality and
trustworthiness of DEA chemists and their reports are beside
the point after Crawford. Reliability no longer shields
testimony from confrontation. As Crawford makes clear,
“[d]ispensing with confrontation because testimony is
obviously reliable is akin to dispensing with jury trial
because a defendant is obviously guilty. This is not what
the Sixth Amendment prescribes.” 541 U.S. at 62.
The DEA chemist’s report was a testimonial statement.
Therefore, the Confrontation Clause barred the prosecution
from introducing the report at appellant’s trial without
calling the chemist to testify in person, unless the
chemist was unavailable and appellant had a prior
opportunity to cross-examine the chemist. Neither of the
latter two prerequisites was met in this case. As the
prosecution advised appellant prior to trial, the DEA
chemist was available to testify, and she had not been made
available to appellant for cross-examination prior to trial.
Nonetheless, the government argues that the Confrontation
Clause was satisfied because appellant could have
subpoenaed the chemist himself (without cost, per D.C. Code
§ 48-905.06) and questioned her as upon
cross-examination as a hostile witness. The flaw in the
logic of this argument is evident: if the chemist was
available to the defense, then she also was available to
the prosecution, i.e., she was not unavailable to testify
in person as Crawford categorically requires. Crawford’s
unqualified insistence on the declarant’s unavailability as
a precondition to admitting testimonial hearsay forecloses
the argument that there exists an “available to the
accused” exemption from the demands of the Confrontation
Clause.[fn17]
To recognize an “available to the accused” exemption would
be contrary not only to Crawford’s express command, but to
the plain language of the Sixth Amendment. The
Confrontation Clause guarantees the accused the right “to
be confronted with the witnesses against him.” This
language, employing the passive voice, imposes a burden of
production on the prosecution, not on the defense. State v.
Snowden, 867 A.2d 314, 332 n. 22 (Md. 2005) (rejecting the
theory that the defendant could call his accusers to the
stand because “the burden of production . . . is placed on
the State [by the Confrontation Clause] to produce
affirmatively the witnesses needed for its prima facie
showing of the defendant’s guilt”). In contrast with the
accused’s right “to have compulsory process for obtaining
witnesses in his favor,” U.S. CONST. amend. VI, which “is
dependent on the defendant’s initiative,” the right to be
confronted with the prosecution’s witnesses and most other
rights protected by the Sixth Amendment “arise
automatically on the initiation of the adversary process
and no action by the defendant is necessary to make them
active in his or her case.” Taylor v. Illinois, 484 U.S.
400, 410 (1988) (emphasis added). The Court elaborated on
this point by quoting with approval the following
commentary:
“The defendant’s rights to be informed of the charges
against him, to receive a speedy and public trial, to be
tried by a jury, to be assisted by counsel, and to be
confronted with adverse witnesses are designed to restrain
the prosecution by regulating the procedures by which it
presents its case against the accused. They apply in every
case, whether or not the defendant seeks to rebut the case
against him or to present a case of his own. . . .”
Id. at 410 n. 14 (quoting Peter Westen, The Compulsory
Process Clause, 73 Mich. L. Rev. 71, 74 (1974)) (emphasis
added).
The rights of confrontation and compulsory process are not
interchangeable. It has been said that “[o]nly a lawyer
without trial experience would suggest that the limited
right to impeach one’s own witness is the equivalent of
that right to immediate cross-examination which has always
been regarded as the greatest safeguard of American trial
procedure.” New York Life Ins. Co. v. Taylor, 79 U.S. App.
D.C. 66, 74, 147 F.2d 297, 305 (1944). More fundamentally,
the “available to the accused” theory of the Confrontation
Clause is flawed because it “unfairly requires the
defendant to choose between his right to cross-examine a
complaining [or other prosecution] witness and his right to
rely on the State’s burden of proof in a criminal case.”
Snowden, 867 A.2d at 332-33 (quoting Lowery v. Collins, 988
F.2d 1364, 1369-70 (5th Cir. 1993)). If the defendant
exercises his constitutional right to put the government to
its proof and not put on a defense, the prosecution
evidence — what amicus aptly calls “the misleadingly
pristine testimonial hearsay of absent witnesses”[fn18]
— may appear deceptively probative in the absence of
cross-examination. In effect, the lack of confrontation
would ease the government’s burden of proof. Alternatively,
any defense presentation may be hamstrung and disrupted if
the defendant — unlike the prosecutor — must
call not only the witnesses “in his favor,” but also the
witnesses “against him.” Ultimately the effect could be to
blur the presumption of innocence and the principle that
the burden of proof on the prosecution “never shifts
throughout the trial.”[fn19]
To be sure, the government does not invite us to adopt an
“available to the accused” exemption from confrontation on
a wholesale basis. Rather, the government argues that “the
right to confront and to cross-examine is not absolute and
may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.”
Chambers v. Mississippi, 410 U.S. 284, 295 (1973). An
accommodating bow is appropriate for DEA chemists’ reports,
the government urges, because such putatively objective,
scientific evidence is seldom in dispute, and requiring the
expert to appear in every drug prosecution therefore would
be a waste of time and public resources.[fn20]
This plea of administrative convenience, which echoes the
reliability rationale of Howard, does not persuade us.
Crawford explicitly held that reliability cannot justify
abrogating a defendant’s right of confrontation. Nothing in
Crawford suggests that its per se rule may be annulled
based on Roberts-era notions of balancing the confrontation
right against the “other legitimate interests” identified by
the government. “Crawford removed the flexibility courts
had to balance the state’s interests, however legitimate,
against the need for prior cross-examination and
unavailability of the witness before testimonial evidence
can be admitted.” Caulfield, 722 N.W.2d at 312. Even prior
to Crawford, moreover, the Supreme Court held that
curtailment of the right of confrontation is permissible
“only” if it shown to be “necessary to further an important
public policy.” Maryland v. Craig, 497 U.S. 836, 850 (1990)
(upholding state procedure allowing testimony of alleged
victim of child sex abuse to be received by one-way closed
circuit television, where necessary to protect child from
serious trauma caused by testifying in defendant’s
presence) (emphasis added). There has been no showing of
necessity in the present case.[fn21] In fact, as we discuss
momentarily, the government’s goals can be achieved without
eroding the Confrontation Clause.
Our discussion thus far compels us to conclude that the
Confrontation Clause admits no exception for DEA chemists’
reports. That brings us to the question whether D.C. Code
§ 48-905.06 is constitutional. In apparent
contravention of Crawford’s understanding of the
Confrontation Clause, the statute directs that a chemist’s
report is admissible in evidence in the chemist’s absence
(even if the chemist is available, and even if the
defendant had no prior opportunity to cross-examine the
chemist), unless the defendant subpoenas the chemist to
appear. In that event, the last sentence of the statute
states, “the examination shall be as on cross-examination.”
Id. The government argues that we can and should construe
the statute to avoid the apparent constitutional difficulty
by “interpret[ing] the last sentence of section 48-905.06
to provide that if the defendant wishes to examine the
chemist at trial, he or she should notify the government,
which then must present the chemist as a witness in its own
case.” Supplemental Brief of Appellee at 36. Such a
construction, the government explains, would allow
confrontation and cross-examination during the government’s
case without “requiring the chemist to testify in the
majority of cases where the chemical analysis is not in
dispute.” Id. at 37.[fn22] The implication of the
government’s suggestion is that if the defendant fails to
notify the government that he wishes to be confronted with
the chemist at trial, the government will not need to call
the chemist in order to introduce the chemist’s report. In
other words, under the government’s proposal, a failure to
demand confrontation would automatically constitute a
waiver of the right.
We agree that D.C. Code § 48-905.06 should be
construed so as to preserve its constitutionality if it is
possible to do so. See, e.g., Keels v. United States, 785
A.2d 672, 684-85 (D.C. 2001).[fn23] We conclude that a
saving construction is fairly possible along the lines of
the government’s proposal.
In order for the prosecution to introduce the chemist’s
report in evidence without calling the chemist to testify,
the record must show a constitutionally valid waiver by the
defendant of his confrontation right. By leaving assertion
of that right to the defendant, D.C. Code §
48-905.06 evinces a clear legislative preference to have
this question of waiver resolved in advance of trial, in
the interests of efficiency and so as to avoid unnecessary
disruption of the operations of the DEA laboratory. We see
no objection in principle to resolving the question of
waiver prior to trial; it is not burdensome for a defendant
represented by counsel to have to state, when asked, whether
he waives his rights or not.[fn24] For the waiver to be
valid, however, it must be “an intentional relinquishment
or abandonment of a known right or privilege.” Johnson v.
Zerbst, 304 U.S. 458, 464 (1938); see, e.g., Barber v.
Page, 390 U.S. 719, 725 (1968) (waiver of Sixth Amendment
right to confrontation). Because a valid waiver cannot be
presumed from a silent record, “demand-waiver” rules, under
which defendants presumptively waive constitutional rights
if they do not affirmatively demand them, are disfavored.
See Barker v. Wingo, 407 U.S. 514, 525 (1972) (rejecting
demand-waiver rule for Sixth Amendment right to a speedy
trial; “[s]uch an approach, by presuming waiver of a
fundamental right from inaction, is inconsistent with [the
Supreme] Court’s pronouncements on waiver of constitutional
rights.”) (footnote omitted).
Given the rule that a valid waiver may not be presumed from
a silent record, and the Supreme Court’s disinclination to
accept demand-waiver rules for Sixth Amendment rights, the
best course for the government obviously will be to obtain
an express waiver by the defendant, on the record in
advance of trial, when the defendant has not responded to
the government’s statutory notification by requesting the
chemist’s presence at trial. Such an express waiver
typically may, but need not, take the form of a stipulation
by the defendant as to the contents of the chemist’s
report. The trial court may assist the process by
addressing at a pretrial hearing whether the defendant
elects to waive his right to be confronted with the
chemist. (Of course, if the defendant expressly declines to
stipulate or otherwise excuse the presence of the chemist,
that is equivalent to a refusal to waive the Sixth Amendment
right of confrontation, and the government then must call
the chemist in its case in order to introduce the chemist’s
report.)
Trial courts therefore seldom if ever should be faced with
the question whether to infer a valid waiver of the right
of confrontation, in the absence of an express waiver,
simply from a defendant’s pretrial failure to notify the
government to produce the chemist. However, if a defendant
represented by counsel is provided with the chemist’s
report and is advised that a failure to request the
chemist’s presence for purposes of confrontation will be
understood as a waiver of the right and as a stipulation to
the admissibility of the chemist’s report, we think that a
trial court would be justified in inferring a valid waiver
from an unexplained or unexcused failure by the defendant to
respond. Cf. Barker, 407 U.S. at 528-29.
Thus, we construe D.C. Code § 48-905.06 to preserve
its constitutionality. Where a defendant expressly asserts
his Sixth Amendment right by subpoenaing the chemist or
otherwise informing the government that he wishes to
cross-examine the chemist at trial, we have no difficulty
accepting the government’s suggestion to construe the
provision that “the examination shall be as on
cross-examination” to mean that the prosecution must call
the chemist in its case. Conversely, so long as the record
shows a constitutionally valid waiver by the defendant of
his confrontation right, D.C. Code § 48-905.06
authorizes the government to introduce the chemist’s report
in evidence without calling the chemist to testify.
The record does not show a valid waiver in this case.[fn25]
We therefore conclude that it was constitutional error to
admit the DEA chemist’s report at appellant’s trial in the
government’s case-in-chief in the chemist’s absence. The
first prong of the plain error test is satisfied.
B. Was the Error “Plain”?
Having found error, we turn to whether the error should be
considered “plain.” “[T]he word `plain’ is synonymous with
`clear’ or, equivalently, `obvious.'” Johnson, 520 U.S. at
467 (quoting Olano, 507 U.S. at 734) (internal quotation
marks omitted). Usually, the issue is whether the error was
plain at the time of trial, i.e., whether the error was “so
egregious and obvious as to make the trial judge and
prosecutor derelict in permitting it, despite the
defendant’s failure to object.” United States v. Gore, 154
F.3d 34, 43 (2d Cir. 1998) (internal quotation marks and
citation omitted). If that were the issue here, we could
not possibly find such dereliction, for Crawford had not
yet been decided at the time of appellant’s trial. In
Johnson, however, the Court held that “in a case such as
this — where the law at the time of trial was
settled and clearly contrary to the law at the time of
appeal — it is enough that an error be `plain’ at
the time of appellate consideration.” 520 U.S. at 468.
The present case differs from Johnson in one respect that
might be thought significant. The error in Johnson arose in
a prosecution for knowingly making a false material
declaration under oath before a grand jury. In accordance
with then-prevailing Circuit precedent, and without
objection from defendant Johnson, the trial court decided
the issue of materiality instead of submitting it to the
jury. Thereafter, before Johnson’s appeal was decided, the
Supreme Court held in United States v. Gaudin, 515 U.S. 506
(1995), that the materiality of a false statement is for
the jury to decide. The trial court’s error thus was clear
by the time Johnson’s case was considered on appeal; the
governing law had changed after trial but before “the time
of appellate consideration” in Johnson itself. In contrast,
in the present case we are asked to find plain error based
on a change in the governing law that we have not declared
before now. It is true, of course, that we are applying the
principles set out in Crawford, which was decided in 2004.
However, while Crawford undeniably created uncertainty as
to the continuing viability of Howard’s constitutional
holding and the constitutionality of D.C. Code §
48-905.06, we have not heretofore resolved that
uncertainty. Although none of the parties before us has
raised the question, it fairly can be asked whether an
appellate court properly may find an error to be “plain” in
the same case in which it first declares the change in the
law that enables it to find error at all.
We think a finding that the error is “plain,” or obvious,
is as mandatory in these circumstances as it was in
Johnson. The rationale of Johnson — that a defendant
should not be required to raise “useless” objections at
trial in order to benefit on appeal from a post-trial
reversal of settled law, see 520 U.S. at 468 — is
equally applicable whether the reversal occurs in the
defendant’s own appeal or in someone else’s appeal, so long
as it occurs before the decision in the defendant’s appeal
is rendered. If the appellate court’s opinion determines
the law and finds error, the error by definition is plain
“at the time of appellate consideration,” id., and clear
“under current law.” Olano, 507 U.S. at 734. (Emphases
added.) It would be anomalous and arbitrary to hold
otherwise, for as soon as the opinion were to issue, it
would be precedent that would establish both “error” and
“plainness” in all other pending direct appeals by
similarly situated appellants raising the same plain error
claim. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
(holding that a “new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases .
. . pending on direct review . . ., with no exception for
cases in which the new rule constitutes a `clear break’
with the past”).
We conclude that the Crawford error in this case is plain
at this time, and that the second of the plain error test
therefore is satisfied.[fn26]
C. Did the Unconstitutional Admission of the Chemist’s
Report Affect Appellant’s Substantial Rights?
In order to show that the non-structural error in this case
affected his substantial rights, appellant must show a
reasonable probability that the Confrontation Clause
violation had a prejudicial effect on the outcome of his
trial. See United States v. Dominguez Benitez, 542 U.S. 74,
81-82 (2004) (“In cases where the burden of demonstrating
prejudice (or materiality) is on the defendant seeking
relief, we have invoked a standard with similarities to the
Kotteakos [v. United States, 328 U.S. 750 (1946)]
formulation in requiring the showing of `a reasonable
probability that, but for [the error claimed], the result of
the proceeding would have been different.'”) (citations
omitted);[fn27] see also Olano, 507 U.S. at 735 (“Normally,
although perhaps not in every case, the defendant must make
a specific showing of prejudice to satisfy the `affecting
substantial rights’ prong of Rule 52(b).”).[fn28]
The error in this case had an obviously prejudicial effect
on the outcome of appellant’s trial. The DEA chemist’s
report was the main, if indeed not the only, proof offered
by the prosecution that the ziplocks distributed by
appellant contained a measurable amount of a mixture
containing cocaine — an essential element of the drug
distribution offense with which appellant was charged. See
Hicks v. United States, 697 A.2d 805, 807 (D.C. 1997); D.C.
Code § 48-902.06 (1)(D) (2001); cf. Bernard v.
United States, 575 A.2d 1191, 1194-95 (D.C. 1990) (holding
circumstantial evidence sufficient to establish that
defendant sold a “usable” amount of marijuana). This is
enough to establish that the erroneous admission of the
report affected appellant’s substantial rights. See, e.g.,
Drayton v. United States, 877 A.2d 145, 148-49 (D.C. 2005)
(holding that if trial court’s verdict was based on hearsay
statements of victim admitted in violation of the
Confrontation Clause, the error “clearly would not only
affect substantial rights but would seriously affect the
fairness and integrity of the proceedings”); United States
v. Bruno, 383 F.3d 65, 79-80 (2d Cir. 2004) (holding that
defendant’s substantial rights were affected by
unconstitutional admission of out-of-court testimonial
statements that established elements of the charged
offenses). The third prong of the test for plain error is
satisfied.
D. Did the Error Seriously Affect the Fairness, Integrity,
or Public Reputation of the Proceedings?
“When the first three parts of Olano are satisfied, an
appellate court must then determine whether the forfeited
error `seriously affects the fairness, integrity or public
reputation of judicial proceedings’ before it may exercise
its discretion to correct the error.” Johnson, 520 U.S. at
469-70 (citations omitted). The Supreme Court answered that
question “in the negative” in Johnson, id. at 470, and we
conclude that we must do the same in this case.
In Johnson, the trial court failed to submit materiality,
an essential element of the charged offense, to the jury,
in violation of the defendant’s Sixth Amendment jury trial
right. The Supreme Court held that this constitutional
error was plain and assumed arguendo that it affected the
appellant’s substantial rights. Nonetheless, because
materiality was “essentially uncontroverted” at trial and
the evidence supporting materiality was “overwhelming,”
id., the Court found that the error did not satisfy the
fourth requirement for reversal. “No `miscarriage of
justice’ will result here if we do not notice the error,”
the Court stated, “and we decline to do so.” Id.
The admission of crucial evidence in violation of the
Confrontation Clause has been found to undermine the
fairness, integrity and public reputation of judicial
proceedings in other cases. See, e.g., Drayton, supra;
Bruno, supra; United States v. Pugh, 405 F.3d 390, 403 (6th
Cir. 2005). The question must be answered in light of the
specific facts of each case, however, and we cannot come to
the same conclusion in this case. The following
considerations, which serve to distinguish this case from
the others cited, inform our judgment.
As to the fairness of the proceeding, appellant was
provided a copy of the DEA chemist’s report, including the
chemist’s worksheet, prior to trial, and he was warned that
it would be offered in evidence against him. He had a fair
opportunity to investigate and challenge the chemist’s
report, and he could have subpoenaed and cross-examined the
chemist if he doubted her findings, qualifications, or
methodology. Yet appellant has never disputed the accuracy
of the chemist’s report; while appellant denied being the
seller, he has never denied what was sold. Nor did
appellant raise a valid objection to the admission of the
report in evidence. Much like the element of materiality in
Johnson, the chemist’s report in this case is “essentially
uncontroverted.” Having elected not to contest the identity
of the cocaine mixture at his trial, appellant cannot claim
that fairness requires that he nonetheless be given a
chance to contest it now. Crawford certainly did not hold
that the denial of the right of confrontation necessarily
undermines the fairness of a criminal proceeding.
As to the integrity of the proceeding (apart from its
fairness to appellant), there is no reason whatsoever to
believe that the chemist’s report was unreliable. The other
evidence at trial — notably, the circumstances of
the sale itself, the ziplock packaging of the drugs, the
physical appearance of the contents (a “white rocky
substance”), the positive field test conducted by Officer
Garner, and expert witness testimony concerning the modus
operandi of drug dealing — strongly corroborated the
chemist’s identification. It would have come as quite a
surprise if the ziplocks had turned out not to contain
cocaine. And we cannot disregard the factors identified and
relied upon by this court in Howard (and the courts of many
other jurisdictions as well) that support the reliability
of the chemist’s report — the objective and routine
nature of the testing, the use of a well-established
chemical procedure, the duty of the chemist to be accurate,
and the absence of any motive on the part of the chemist to
falsify the results. Howard, 473 A.2d at 839. Crawford did
not hold that confrontation is always necessary for
reliable fact finding. See Lave v. Dretke, 444 F.3d 333, 337
(5th Cir. 2006) (“[T]he rule announced in Crawford does not
assure greater accuracy because it bars admission of a
statement to which it applies even when the statement is
highly reliable.”); Murillo v. Frank, 402 F.3d 786, 790
(7th Cir. 2005) (“[I]t would be a close question whether
Crawford helps or hinders accurate decision making. . . .
The point of Crawford is not that only live testimony is
reliable, but that the Sixth Amendment gives the accused a
right to insist on live testimony, whether that demand
promotes or frustrates accuracy.”).
Lastly, given what we have said regarding the fairness of
the procedure and the reliability of the evidence, it is
difficult to see how the use of the DEA chemist’s report at
appellant’s trial otherwise could be thought to have
impugned the public reputation of the judicial proceeding.
The chemist’s report was admitted in accordance with the
settled law at the time of trial. This is not a case in
which either the prosecutor or the trial judge was derelict
in any way.
In view of the foregoing considerations, we see no basis to
conclude that the fairness, integrity or public reputation
of appellant’s trial was undermined by the introduction of
the chemist’s report. No one could have thought so at the
time of trial, and the Supreme Court’s subsequent decision
in Crawford does not alter that fact. We are satisfied, as
the Supreme Court was in Johnson, that no miscarriage of
justice will result in this case if we do not notice the
error.
III.
For the foregoing reasons, the admission of the DEA
chemist’s report in violation of the Confrontation Clause
does not entitle appellant to reversal of his conviction.
Appellant’s other arguments for reversal are without
merit.[fn29] Accordingly, appellant’s conviction is
affirmed.
[fn1] Officer McClinton described appellant in the lookout
as a black male with an unshaven face who weighed
approximately 150 to 170 pounds and was about 5’6″ or 5’7″
tall, and who was wearing a black vest, black shorts, and a
black tee shirt with some sort of insignia or print on it.
[fn2] Appellant points out, however, that the arrest report
listed his weight as 220 pounds, considerably more than the
weight given in the lookout.
[fn3] The government moved for admission of the report after
Officer Garner confirmed that it bore the same
identification number as the heat-sealed envelope in which
she placed the two ziplocks given to her by Officer
McClinton.
[fn4] The chemist’s report is commonly referred to the
“DEA-7,” but to be precise, it is only the Report of Drug
Property Collected, Purchased or Seized that is the Drug
Enforcement Administration Form 7, or DEA-7.
[fn5] In the chemist’s absence, Officer Garner misunderstood
the report and testified that the net weight of the cocaine
base was .15 grams. This answer was mistaken, because .15
grams was the reported net weight of the white rocky
substance in its entirety.
[fn6] See Giles v. District of Columbia, 548 A.2d 48, 53-54
(D.C. 1988) (holding that a chemist’s report is admissible
under D.C. Code § 48-905.06 “without need for a
testimonial foundation, if four requirements are met: (1)
the `analysis of a controlled substance [must be] performed
by a chemist charged with an official duty to perform such
analysis,’ (2) an `official report of chain of custody and
of analysis of [the] controlled substance’ must be
`attested to by that chemist,’ (3) the chemist’s official
report must be `attested to . . . by the officer having
legal custody of the report,’ and (4) the official report
must be `accompanied by a certificate under seal that the
officer has legal custody.'”); accord, Ellis v. United
States, 834 A.2d 858, 858 n. 1 (D.C. 2003).
[fn7] Whether the chemist’s report was admitted in error is
a question that implicates the constitutional validity of
D.C. Code § 48-905.06 after Crawford. Because that
statute is utilized in hundreds of drug cases prosecuted in
Superior Court each year, the government — citing
the need for guidance to the Superior Court — urges
us to address the constitutional question under the first
step of plain error analysis even if we could avoid it by
concluding that other requirements of plain error are not
met.
[fn8] “In sum,” the Supreme Court stated in Roberts,
when a hearsay declarant is not present for
cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable. Even
then, his statement is admissible only if it bears
adequate “indicia of reliability.” Reliability can be
inferred without more in a case where the evidence falls
within a firmly rooted hearsay exception. In other cases,
the evidence must be excluded, at least absent a showing
of particularized guarantees of trustworthiness.
Id. at 66. Regarding the “normally” applicable requirement
of witness unavailability, the Court reiterated what it
called the “basic litmus” test:
“[A] witness is not `unavailable’ for purposes of . . .
the exception to the confrontation requirement unless the
prosecutorial authorities have made a good-faith effort to
obtain his presence at trial.”
Id. at 74 (quoting, with emphasis added, Barber v. Page, 390
U.S. 719, 724-25 (1968)).
[fn9] See Super. Ct. Civ. R. 43-I (made applicable to
criminal cases by Super. Ct. Crim. R. 57).
[fn10] In finding the DEA reports reliable enough to
dispense with confrontation, the Howard court deemed it
significant that the identity of a controlled substance .
. . is determined by a well recognized chemical procedure.
Thus, the reports contained objective facts rather than
expressions of opinion. In addition, the chemists who
conduct such analyses do so routinely and generally do
not have an interest in the outcome of trials. In fact, as
employees and scientists, they are under a duty to make
accurate reports. It is difficult to perceive any motive
or opportunity for the chemists to falsify.
Id.
[fn11] Underscoring the point, the Court stated that it was
aware of only one “deviation” from the general rule that
hearsay exceptions could not be utilized to admit
testimonial hearsay against a criminal defendant:
The one deviation we have found involves dying
declarations. The existence of that exception as a general
rule of criminal hearsay law cannot be disputed.
[Citations omitted.] Although many dying declarations may
not be testimonial, there is authority for admitting even
those that clearly are. [Citations omitted.] We need not
decide in this case whether the Sixth Amendment
incorporates an exception for testimonial dying
declarations. If this exception must be accepted on
historical grounds, it is sui generis.
Id. at n. 6. Thus, the exception for dying declarations, if
it exists, is the exception that proves the general rule.
[fn12] See also Richard D. Friedman, Confrontation: The
Search for Basic Principles, 86 Geo. L. J. 1011, 1042
(1998) (“[A] declarant should be deemed to be acting as a
witness when she makes a statement if she anticipates that
the statement will be used in the prosecution or
investigation of a crime.”) (emphasis in original).
[fn13] “The Framers were no more willing to exempt from
cross-examination volunteered testimony or answers to
open-ended questions than they were to exempt answers to
detailed interrogation.” Id.
[fn14] In Feliz, the Second Circuit held that routine
autopsy reports prepared by the Office of the Chief Medical
Examiner of New York are not testimonial because such
reports satisfy two criteria that must be met to qualify as
a business record under Federal Rule of Evidence 803 (6)
— they are not made for purposes of litigation (even
if the possibility of litigation is foreseeable in some
instances) and they do not include observations made by law
enforcement personnel. Id. at *19-24. Because DEA chemist’s
reports do not satisfy either criterion, they would not be
admissible as business records under FRE 803 (6) if offered
by the government.
[fn15] Commentators on Crawford also have reached the
conclusion that forensic laboratory reports are
testimonial. See, e.g., Richard D. Friedman, Adjusting to
Crawford: High Court Decision Restores Confrontation Clause
Protection, 19 Crim. Just. 4, 11 (Summer 2004) (“In most
circumstances, the lab report should probably be considered
testimonial. Therefore, the lab technician who made the
report should testify at trial if available to do so.”);
Paul C. Giannelli, Admissibility of Lab Reports: The Right
of Confrontation Post-Crawford, 19 Crim. Just. 26 (Fall
2004) (“[A] laboratory report is simply the affidavit of an
expert.”); Pamela R. Metzger, Cheating the Constitution, 59
Vand. L. Rev. 475, 511 (2006) (“There can be no question
that forensic laboratory reports are testimonial.”).
[fn16] In May 2004, for example, the Justice Department’s
Office of the Inspector General (OIG) issued a report
entitled The FBI DNA Laboratory: A Review of Protocol and
Practice Vulnerabilities, which detailed the misconduct,
discovered by chance, of an FBI biologist who falsified her
laboratory reports. The investigation found that the
biologist’s misconduct “has rendered over two years worth
of her STR [Short Tandem Repeat analysis, a DNA typing
method] work scientifically invalid and unsuitable for use
in court, requiring the FBI Laboratory to repeat DNA
testing in her cases.” Id. at 47. The report is available
at http://www.usdoj.gov/oig/special/0405/index.htm.
Similarly, an OIG report on the Explosives, Materials
Analysis, and Chemistry-Toxicology Units of the FBI
Laboratory found “significant instances of testimonial
errors, substandard analytical work, and deficient
practices,” including “scientifically flawed” and otherwise
improperly prepared laboratory reports. The FBI Laboratory:
An Investigation into Laboratory Practices and Alleged
Misconduct in Explosives-Related and Other Cases, Report of
the Office of the Inspector General, U.S. Dept. of Justice
(April 1997) (available at
http://www.usdoj.gov/oig/special/9704a/index.htm).
For an overview of the extent to which the reliability of
government forensic laboratory evidence has been
challenged, see Metzger, supra footnote 15, at 491-500.
“Anyone who would question the value of cross-examination
in this context need only look at recent newspaper
headlines.” Giannelli, supra footnote 15, at 30.
[fn17] Indeed, an “available to the accused” exemption
cannot be squared with the facts of Crawford. The declarant
in that case was the defendant’s wife Sylvia, and the only
reason the prosecution could not call Sylvia to testify at
trial was the defendant’s invocation of his marital
privilege, “which generally bars a spouse from testifying
without the other spouse’s consent.” 541 U.S. at 40.
Crawford therefore was a case in which the declarant,
though unavailable to the prosecution, most as suredly was
available to the defendant, who could have called her in
his defense case and examined her about her tape-recorded
statement to the police. If there ever was a case for
recognizing an “available to the accused” exception to the
right of confrontation, Crawford was it. But Sylvia’s
availability to the defendant was of no moment; it did not
stop the Supreme Court from concluding that “[i]n this
case, the State admitted Sylvia’s testimonial statement
against petitioner, despite the fact that he had no
opportunity to cross-examine her. That alone is sufficient
to make out a violation of the Sixth Amendment.” Id. at 68
(emphasis added).
[fn18] Reply Brief of Amicus Curiae at 17.
[fn19] CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF
COLUMBIA, Instruction No. 2.08 (“Burden of Proof —
Presumption of Innocence”) (2004).
[fn20] Although the government seeks in this case only to
exempt DEA chemists’ reports from the Confrontation Clause,
its rationale would apply, or easily could be stretched to
apply, to many other types of forensic scientific
expertise. Given the widespread prosecutorial use of DNA
test results, fingerprint identifications, ballistics
reports, blood tests, hair and fiber analyses, toxicology
reports, et cetera, acceptance of the government’s argument
could have a major impact on criminal prosecutions
generally.
[fn21] Certainly there has been no curtailment of the
Confrontation Clause for DEA chemists’ reports in federal
court drug prosecutions. D.C. Code § 48-905.06 has
no counterpart in the federal criminal code; nor, as
previously noted, are DEA chemists’ reports admissible under
the hearsay exception for business records in the Federal
Rules of Evidence. As a result, the chemists’ reports are
not admissible in evidence on government motion in federal
court unless the chemist testifies in person or the
defendant waives the chemist’s appearance. We are given to
understand that the government suffers no great
inconvenience as a result. Most defendants, it appears,
waive the presence of the chemist at trial by stipulating
in advance of trial to the admissibility of the chemists’
reports.
[fn22] In Brown v. United States, 627 A.2d 499, 506-07 (D.C.
1993), we held that the Constitution does not require the
government to produce the DEA chemist in its case-in-chief
“instead of merely making him available during the defense
case.” While Brown was settled precedent at the time of
appellant’s trial, and precluded appellant from demanding
that the government put the chemist on the stand, we do not
view its holding as binding after Crawford.
[fn23] In Keels, the court construed the provision of former
D.C. Code § 22-2404.1 authorizing a sentence of life
imprisonment without parole based on a finding of
aggravating circumstances by “the court.” In order to
preserve the constitutionality of this provision under
Apprendi v. New Jersey, 530 U.S. 466 (2000), we interpreted
the statute to require that any such finding by the court
be predicated on an equivalent finding beyond a reasonable
doubt by the jury. We explained our choice of a fairly
possible construction of the statute that preserved its
constitutionality as follows:
Consistent with guidance from the Supreme Court, see
National Labor Relations Bd. v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 30, 57 S. Ct. 615, 81 L. Ed. 893
(1937); Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76
L. Ed. 598 (1932), we have steadfastly adhered to the
principle that “[w]here a constitutional challenge to a
statute is made, and the statutory language permits, we
construe [the] statute so as to avoid constitutional
confrontation.” In re Johnson, 699 A.2d 362, 369 (D.C.
1997). . . . Put more directly, “[a]s between two
possible interpretations of a statute, by one of which it
would be unconstitutional and by the other valid, our
plain duty is to adopt that one [sic] which will save the
act.” Tyler v. United States, 705 A.2d 270, 279 (D.C.
1997) (Schwelb, J., concurring) (quoting Jones &
Laughlin, supra, 301 U.S. at 30, 57 S. Ct. 615).
Keels, 785 A.2d at 684-85.
[fn24] We note that a defendant would not be precluded from
changing his mind, so long as the prosecution is not
prejudiced by having relied on the defendant’s election to
its detriment.
[fn25] Appellant’s failure to subpoena the DEA chemist or
otherwise respond to the government’s Notice of Compliance
Pursuant to 48 D.C. Code § 905.06 (or to raise a
Confrontation Clause objection at trial) was not a valid
waiver of his right of confrontation because settled
precedent at the time of appellant’s trial prevented him
from requiring the government to produce the DEA chemist in
its case-in-chief. See footnote 22, supra.
[fn26] Our holding that Johnson’s special plain error rule
applies to the unconstitutional admission of a chemist’s
report in a pre-Crawford trial should not be misunderstood
to apply to trials conducted after Crawford was decided.
After Crawford, the governing law in this area was no
longer settled; the continuing viability of our
Roberts-based holding in Howard was clearly in doubt. In
trials conducted after Crawford, therefore, an objection
would not necessarily have been futile. Johnson’s plain
error rule — that an error need only be plain at the
time of appellate consideration if an objection at trial
would have been futile under then-settled law —
therefore does not apply to the admission of chemists’
reports in post-Crawford trials. Instead, if a defendant
failed to raise a Confrontation Clause objection based on
Crawford in a trial held after Crawford was decided, the
forfeited claim would be subject to the usual plain error
test on appeal.
[fn27] “The reasonable-probability standard is not the same
as, and should not be confused with, a requirement that a
defendant prove by a preponderance of the evidence that but
for error things would have been different.” Dominguez
Benitez, 542 U.S. at 83 (citation omitted).
[fn28] The Second Circuit has held that where (as in the
present case) a supervening decision alters settled law,
the Olano conditions for finding reversible plain error
still must be met, but with “one crucial distinction: the
burden of persuasion as to prejudice (or, more precisely,
lack of prejudice) is borne by the government, and not the
defendant.” United States v. Viola, 35 F.3d 37, 42 (2d Cir.
1994). Although the Viola court’s rationale for this
modification of the plain error test is persuasive, no
other Circuit has embraced it, and its “continuing
viability” after Johnson has been questioned even in the
Second Circuit. See United States v. Stewart, 433 F.3d 273,
294 n. 5 (2d Cir. 2006). Given the conclusion we reach that
appellant has shown prejudice, we need not decide in this
case whether to follow Viola.
[fn29] Appellant argues that the trial court should have
granted his motion to suppress his in-court and
out-of-court identifications because he was stopped by the
police without probable cause or reasonable articulable
suspicion. We disagree. Appellant was stopped because
Officer McClinton pointed him out as the person who had just
sold him cocaine, and appellant rather closely matched the
description Officer McClinton had broadcast.
Appellant also contends that the trial court erred in
admitting extensive expert testimony concerning the modus
operandi of drug dealers, which he argues was substantially
more prejudicial than probative. We have recognized,
however, that “[b]ecause the use, sale, and packaging of
[drugs] on the streets are not matters within the ken of
the average lay person, expert testimony on the modus
operandi of drug traffickers may be admitted if relevant.”
Hinnant v. United States, 520 A.2d 292, 293 (D.C. 1987).
The trial court has “broad discretion” to admit or exclude
such expert testimony, “and its decision either way will
not be disturbed on appeal unless it is manifestly
erroneous.” Id. Especially given appellant’s
misidentification defense, which emphasized that he had no
drugs or marked money in his possession when the police
stopped him a half hour after the sale to Officer
McClinton, we are not persuaded that the trial court abused
its discretion in allowing considerable leeway for the
expert’s testimony in this case.