IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Mar :29: KA COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LOREN WENDELL ROSS APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE ISSUES FACTS SUMMARY OF ARGUMENT ARGUMENT Standard of Review The trial court did not violate Ross' right of confrontation by allowing the reviewing analyst's testimony CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LOREN WENDELL ROSS APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Madison County after a jury convicted Loren Wendell Ross of Felony Driving Under the Influence, in violation of Mississippi Code Annotated section The Honorable Edwin L. Hannan, Special Circuit Judge, presiding, sentenced Ross to five (5) years in MDOC with two years suspended and five (5) years supervised probation. After the court denied his Motion for Judgment Notwithstanding the Verdict or New Trial, Ross appealed raising the following issue: Whether the trial court violated Ross right to confrontation by allowing David Lockely to testify about scientific tests that he did not personally conduct, assist or oversee. FACTS Patrolman Ryan Kendrick with the Madison Police Department pulled over a car driven by Loren Ross, around 2:00 a.m. on August 1, 2013, for failing to have lights illuminating the license plate. T. 90. After Kendrick requested his driver s license and insurance, Ross rolled down his window about an inch and initially handed Officer Kendrick a credit card and insurance. T. 91. Ross told Kendrick that he had not had anything to drink that night. T. 92. Kendrick observed a bottle of Jager sitting on the backseat floorboard. T. 92. Kendrick ran a criminal history and driver s license 1

5 check on Ross and learned his license was valid but he had prior DUIs. T. 92. Kendrick asked Ross to exit the vehicle to talk to him. Ross agreed to a field sobriety test and to provide a breath sample. Kendrick smelled intoxicating beverage on Ross s breath and believed Ross intoxicated. T. 93. When asked a second time about what he had to drink Ross admitted to drinking a margarita at 9:00 that night. T. 93. Officer Kendrick issued Ross a ticket for the improper lighting. T. 94. Madison police officer Drew Hall, who was more experienced in working DUI cases, went to the scene of the traffic stop to assist Kendrick. T. 91, 92, 130. Ross told Officer Hall that he had two margaritas to drink at Margaritas. His last drink was around11:00 p.m. Ross went to the Black Diamonds Club but didn t have anything to drink because they didn t serve alcohol. T. 132, 133. Officer Hall smelled an intoxicating beverage on Ross s breath and asked him if he would give a preliminary breath sample. T Ross gave two breath samples on Hall s BPT, which both tested positive. T Hall then conducted several field sobriety tests, including the HGN (horizontal gaze nystagmus) test, the walk-and-turn test and the one-leg stand test. During the tests, Officer Hall observed four of eight clues indicating a person is under the influence of an intoxicating beverage. T Hall arrested Ross for driving under the influence and transported him to the Madison Police Department. T.139. Ross agreed to blow into the Intoxilyzer 8000, a machine that uses breath samples to determine possible intoxication. T140. However, after several attempts, Officer Hall thought the machine malfunctioned so he took Ross to Ridgeland Police Department to use their machine. Ross was unable to give a long enough breath in Ridgeland s Intoxilyzer 8000, T. 145, 146. Hall took Ross back to the Madison department and attempted a third test on the Intoxilyzer. Then Ross consented to give a blood sample. T Officer Hall took Ross to the Madison River Oaks Hospital where an emergency room technician drew two vials of blood around 4:30 a.m. T

6 Hall returned Ross to the Madison Police Department for processing. T The blood samples were submitted to the Mississippi Crime Lab. T At trial, Ross requested to serve as his own attorney during the testimony of the witness from the Mississippi Crime Lab, both objecting when appropriate, and conducting the cross-examination of the witness. Ross had a bachelor s degree in biology and a masters degree in hazardous waste management. T The trial court questioned Ross pursuant to Uniform Circuit and County Court Rule 8.05, and directed defense counsel remain at the counsel table for advise. T David Lockley, a forensic scientist specializing in alcohol analysis with the Mississippi Crime Lab, qualified as an expert in the area of forensic toxicology, specifically with alcohol analysis. T First Lockley testified to the results obtained on the Intoxilyzer 8000 tests. T Then Lockley testified to the results obtained on Ross blood samples. T 309. Lockley reported that Ross' blood alcohol level registered at 0.16, which exceeded the legal limit. T Exhibits Based on his training and experience, A persona at a percent alcohol concentration would be too impaired to operate a motor vehicle. T Dariel McKenzie conducted the tests on Ross blood samples. McKenzie was also in the implied consent section as a forensic scientist specializing in alcohol and drug analysis. T Lockley was involved in the production of the case report for Ross blood samples and signed it as the technical reviewer and administrator. T. 271, Exhibit 13. Lockley conducts procedural checks to make sure that everything was followed correctly. By signing the report as the technical reviewer and administrator he agrees with the other person s work, as well as anything they may have done to obtain a result in that particular case. T Lockely reviewed McKenzie s work, checking to make sure the scientific principals used in the testing were fundamentally sound, as well as the techniques used to produce the result. Lockley testified there was nothing in McKenzie s work that indicated 3

7 inaccuracies about the test results. T The state rested and the defense moved for a directed verdict, which the court denied. T.314, 315. The defense rested without calling any witnesses. The jury found Ross guilty of felony DUI. T SUMMARY OF THE ARGUMENT This Court should affirm the jury s conviction of Loren Wendell Ross for felony driving under the influence. Ross is procedurally barred for failing to make a timely objection to Lockley s testimony. However, under the doctrine of plain error, this court can review obvious error that was not properly raised by the defendant and which affects a defendant's fundamental, substantive right. The trial court did not violate Ross constitutional rights to confrontation by allowing David Lockley, the reviewing analyst, to testify to the laboratory analysis of Ross blood conducted by Dariel McKenzie. Lockley was more than a mere surrogate for McKenzie. His participation extended to the process of reviewing the testing procedure performed by McKenzie and was involved in the production of the specific report used to reach the conclusion that Ross blood alcohol level registered at The trial court did not did not abuse its discretion in admitting Lockley s testimony. 4

8 ARGUMENT PROPOSITION:. The trial court did not violate Ross' right of confrontation by allowing the reviewing analyst's testimony. a. Standard of Review. Our standard of review regarding admission or exclusion of evidence is abuse of discretion. Smith v. State, 25 So.3d 264, 269 (Miss.2009) (citing Brown v. State, 965 So.2d 1023, 1026 (Miss.2007)). Constitutional issues are reviewed de novo. Id. (citing Hayden v. State, 972 So.2d 525, 536 (Miss.2007)). Jenkins v. State, 102 So. 3d 1063, 1065 (Miss. 2012), as modified on denial of reh'g (Dec. 20, 2012). Ross failed to make a contemporaneous objection to Lockley s testimony at trial, therefore, the issue is procedurally barred. Conners v. State, 92 So.3d 676, 682 ( 15) (Miss.2012). Thus, for reversal on the issue, plain error must have existed. Hingle v. State, 153 So.3d 659 (Miss. 2014). Under the plain-error doctrine, we can recognize obvious error [that] was not properly raised by the defendant... and which affects a defendant's fundamental, substantive right. Id. at 682 ( 15) (quoting Smith v. State, 986 So.2d 290, 294 ( 10) (Miss.2008)). We have held that a Confrontation Clause violation is a violation of a fundamental, substantive right. Conners, 92 So.3d at 682 ( 15). Therefore, although Ross did not object at trial it is appropriate for this Court to determine whether a Confrontation Clause violation occurred. Reversal under the plain error doctrine, requires an error that resulted in a manifest miscarriage of justice. Williams v. State, 134 So.3d 732, 736 ( 15) (Miss.2014) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). Even if there was an error of the nature alleged and even if that error resulted in a violation of the Confrontation Clause if the error did not result in a manifest miscarriage of justice, then it can 5

9 be deemed harmless. Conners, 92 So.3d at ( 20 21) (concluding that Conners's right to confrontation was violated, but it did not result in a manifest miscarriage of justice, and the error was harmless). b. The trial court did not commit error by allowing David Lockley to testify about the blood analysis. David Lockley testified that Ross' blood alcohol level registered at 0.16, which exceeded the legal limit. T Exhibits According to Lockley, A persona at a percent alcohol concentration would be too impaired to operate a motor vehicle. T Ross argues on appeal that his Sixth Amendment right to confront the witnesses against him was violated because the results of the blood analysis was given by David Lockley, a laboratory analyst who did not personally perform the test. The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. U.S. Const. amend. VI; Miss. Const. art. 3, 26. The United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars the admission of testimonial statements made by a witness who does not appear at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Wash., 541 U.S. 36, 53 54, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Though there is no exhaustive list defining testimonial statements, [a] document created solely for an evidentiary purpose... ranks as testimonial. Bullcoming v. N.M., U.S.,, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) (quoting Melendez Diaz v. Mass., 557 U.S. 305, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009)). Forensic laboratory reports created specifically to serve as evidence against the accused at trial are among the core class of testimonial statements governed by the Confrontation Clause. Melendez Diaz, 129 6

10 S.Ct. at The Supreme Court noted that forensic evidence is no more reliable or straightforward than any other form of testimonial evidence. Id. at Therefore, the prosecution was required to make the analysts available for Confrontation Clause purposes. Id. at Jenkins v. State, 102 So. 3d 1063, 1066 (Miss. 2012), as modified on denial of reh'g (Dec. 20, 2012). In Bullcoming, the evidence introduced was a forensic laboratory report certifying that Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming, 131 S.Ct. at The laboratory analyst who testified about the report was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample. Id. The Supreme Court held that the surrogate testimony of a lab analyst who did not sign the certification or perform or observe the test reported in the certification did not satisfy the Sixth Amendment right to confrontation. Jenkins v. State, 102 So. 3d 1063 at 1066 (Miss. 2012). In Jenkins, the Mississippi Supreme Court held that the defendant's constitutional right to confrontation was not violated when laboratory supervisor was allowed to testify in place of analyst who had performed substance testing. To determine if a witness satisfies the defendant's right to confrontation, we apply a two-part test: First, we ask whether the witness has an intimate knowledge of the particular report, even if the witness was not the primary analyst or did not perform the analysis firsthand. [McGowen, 859 So.2d at 340]. Second, we ask whether the witness was actively involved in the production of the report at issue. Id. We require a witness to be knowledgeable about both the underlying analysis and the report itself to satisfy the protections of the Confrontation Clause. Conners, 92 So.3d at 690 (Carlson, P.J., specially concurring). Jenkins, 102 So.3d at The Mississippi Supreme Court recently addressed the Sixth Amendment right to confrontation in Hingle v. State, 153 So. 3d 659 (Miss. 2014), reh'g denied (Jan. 15, 2015). It held 7

11 admission of a crime laboratory analyst's testimony about a lab report, showing that pills contained morphine, did not violate the confrontation clause because analyst had intimate knowledge of the testing and he was actively involved in the production of the report. as the reviewing analyst, and his signature, as the reviewing analyst, was required for the report to be completed. The analyst provided meaningful testimony and adequately responded to all questions asked on direct and cross-examination, and stated that, as the reviewing analyst, he went over preparer's report in detail to ensure that it was correct, and analyst reached an independent conclusion that the pills contained morphine. Lockley satisfies Ross right to confrontation. The two parts of the test were satisfied. The record supports a finding that Ross right to confrontation was met. Lockley was appointed to review the testing performed by Dariel McKenzie. Lockley qualified to testify as an expert in the field of forensic toxicology, specifically with alcohol analysis. T Lockley was involved in the production of the case report for Ross blood samples and signed it as the technical reviewer and administrator. T. 271, Exhibit 13. Lockley conducted procedural checks to make sure that McKenzie followed correct procedure. By signing the report as the technical reviewer and administrator he agreed with McKenzie s work, as well as the steps he took to obtain the results on Ross blood alcohol analysis. T Lockely reviewed McKenzie s work, checking to make sure the scientific principals used in the testing were fundamentally sound, as well as the techniques he used to produce the result. Lockley testified there was nothing in McKenzie s work that indicated inaccuracies about the test results. T He also testified that he and McKenzie use the same machines and the same protocols; neither of which left any room for error. T The trial court did not abuse its discretion when it admitted Lockley s testimony. Lockley had "intimate knowledge" of the particular report, even though he did not perform the 8

12 analysis firsthand. He was "actively involved in the production" of the report at issue. Lockley was knowledgeable about both the underlying analysis and the report itself to satisfy the protections of the Confrontation Clause. This issue is without merit. CONCLUSION The State asks this Court to affirm the judgment of conviction from the Circuit Court of Madison County, Mississippi. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Lisa L. Blount LISA L. BLOUNT Special Assistant Attorney General Mississippi Bar No Office of the Attorney General Post Office Box 220 Jackson, Mississippi Telephone: (601)

13 CERTIFICATE OF SERVICE I, LISA L. BLOUNT, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Edwin Y. Hannan Special Circuit Court Judge P.O. Box 1626 Canton, MS Honorable Michael Guest District Attorney P.O. Box 121 Canton, MS Erin E. Pridgen, Esq. Office of State Public Defender Indigent Appeals Division P.O. Box 3510 Jackson, MS This the 31st day of March, Office of the Attorney General Post Office Box 220 Jackson, Mississippi Telephone: Fax: lblou@ago.state.ms.us /s/ Lisa L. Blount LISA L. BLOUNT Special Assistant Attorney General 10