________________________________________________________________ IN THE COURT OF APPEALS OF THE STATE by flyinanweather

VIEWS: 25 PAGES: 19

									    ________________________________________________________________

            IN THE COURT OF APPEALS OF THE STATE OF OREGON
                               ---------------

STATE OF OREGON,                       )
                                       ) Circuit Court No. 050633741
           Plaintiff-Respondent,       )
      vs.                              )
                                       )
ANTHONY SWANAGAN, aka                  ) Appellate Court No. A130267
Jerome Swanagan,                       )
                                       )
           Defendant-Appellant.        )
                                    ---------------
                               APPELLANT'S BRIEF
                                    ---------------
                    Appeal from the Judgment of the Circuit Court
                              From Multnomah County
                   Honorable RAYMOND R. BAGLEY, JR., Judge
                                    ---------------

PETER GARTLAN #87046
  Chief Defender
  Legal Services Division
  Office of Public Defense Services

ANNE FUJITA MUNSEY #99408
    Senior Deputy Public Defender
    1320 Capitol St NE, Ste 200
    Salem, OR 97303
    Phone: (503) 378-3349
           Attorneys for Defendant-Appellant

HARDY MYERS #64077
    Attorney General
MARY H. WILLIAMS #91124
    Solicitor General
    400 Justice Building
    Salem, OR 97301
    Phone: (503) 378-4402
            Attorneys for Plaintiff-Respondent

46381                                                                  01/07
                                                                                                                               i

                                           TABLE OF CONTENTS

STATEMENT OF THE CASE...................................................................................... 1
   NATURE OF THE PROCEEDING..................................................................................... 1

   NATURE OF THE JUDGMENT ........................................................................................ 1

   JURISDICTION .............................................................................................................. 2

   NOTICE OF APPEAL ..................................................................................................... 2

   QUESTION PRESENTED ................................................................................................ 2

   SUMMARY OF ARGUMENT .......................................................................................... 2

   SUMMARY OF FACTS................................................................................................... 3
ASSIGNMENT OF ERROR ......................................................................................... 5
         The trial court erred when it granted the state’s motion in limine to
         admit Exhibit 1, the crime laboratory report, without presenting the
         testimony of the forensic scientist who prepared the report.

      Preservation of Error .............................................................................................. 6

      Standard of Review ................................................................................................ 7

   ARGUMENT ................................................................................................................. 8

      I. Laboratory reports are testimonial evidence subject to the Sixth Amendment
      Confrontation Clause requirements. ....................................................................... 8

      II. Crawford strongly suggests that Hancock was wrongly decided. ..................... 8

      III. Admission of the laboratory report was not harmless. ................................... 14
CONCLUSION............................................................................................................ 15
                                                                                                                            ii


                                        TABLE OF AUTHORITIES


                                                          CASES

Crawford v. Washington, 541 US 36, 124 S Ct 1354,
  158 L Ed 2d 177 (2004) .................................................................2, 3, 6, 7, 8, 12, 13

In re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970) ............................. 13

Pointer v. Texas, 380 US 400, 403, 85 S Ct 1065, 13 L Ed 2d 923 (1965)................... 8

Sandstrom v. Montana, 442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979) ................ 13

State v. Davis, 336 Or 19, 77 P3d 1111 (2003) ........................................................... 14

State v. Hancock, 317 Or 5, 854 P2d 926 (1993) ..................3, 6, 7, 8, 9, 10, 11, 12, 14

State v. Mai, 294 Or 269, 656 P2d 315 (1982) ............................................................ 10

State v. Miller, 208 Or App 424, 144 P3d 1052 (2006),
  opinion adhered to on reconsideration,
  __ Or App __, __ P3d __ (Dec 27, 2006) .............................................................. 7, 8

State v. O'Key, 321 Or 285, 899 P2d 663 (1995)......................................................... 14

State v. Wells, 208 Or App 480, 144 P3d 1077 (2006).................................................. 9

State v. Wigglesworth, 49 F3d 578 (9th Cir 1995) ...................................................... 11



                       STATUTES AND CONSTITUTIONAL PROVISIONS

US Const, Amend VI ....................................................................................... 2, 6, 8, 13

US Const, Amend XIV .................................................................................................. 8

Or Const, Art I, § 11 ...................................................................................................... 6

Or Const, Art VII (Amended), § 3............................................................................... 14

ORS 135.455................................................................................................................ 11
                                                                                                                           iii


ORS 135.835(1) ........................................................................................................... 10

ORS 135.835(2) ........................................................................................................... 11

ORS 135.835(3) ........................................................................................................... 11

ORS 136.567(1) ............................................................................................................. 9

ORS 475.235..................................................................................6, 7, 9, 10, 11, 12, 13
                        APPELLANT’S BRIEF
  _________________________________________________________________

                          STATEMENT OF THE CASE

                             Nature of the Proceeding

       This is a criminal case in which defendant appeals from a judgment convicting

him of two counts of delivery of a schedule II controlled substance, former ORS

475.992(1) (2003), renumbered as ORS 475.840(1) (2005), and one count of

possession of a schedule II controlled substance, former ORS 475.992(4) (2003),

renumbered as ORS 475.840(3) (2005). The indictment is set forth at ER 1-2.



                              Nature of the Judgment

       Defendant was charged by indictment with two counts of delivery of a

schedule II controlled substance for consideration (Counts 1 and 2), and one count of

possession of a schedule II controlled substance (Count 3). ER 1-2. A jury found him

guilty as charged.

       On Counts 1 and 2, the trial court categorized defendant as a 6-A offender and

imposed a presumptive sentence of 25 months’ prison with three years’ post-prison

supervision. It ordered defendant to serve five months of the sentence on Count 2

consecutively to the sentence on Count 1. On Count 3, the court imposed a stipulated

dispositional departure sentence of four months’ prison with one year of post-prison

supervision, to be served concurrently with the sentence on Count 1. The court

imposed fines and fees totaling $321. A copy of the judgment is attached at ER 4-7.
                                                                                          2

                                       Jurisdiction

       This court has jurisdiction pursuant to ORS 138.040.



                                    Notice of Appeal

       Defendant timely filed the notice of appeal on October 28, 2005, from the

judgment entered in Multnomah County Circuit Court on September 28, 2005.



                                   Question Presented

       Does the admission of a crime laboratory report, notwithstanding the

defendant’s failure to subpoena the author of the report, violate the defendant’s Sixth

Amendment Confrontation Clause rights?



                                 Summary of Argument

        The laboratory report, which confirmed that the substances at issue in this case

were cocaine, constitutes “testimonial evidence” because it was a statement “made

under circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.” Crawford v. Washington, 541

US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004). Defendant’s federal Confrontation

Clause rights guaranteed him the opportunity to cross-examine the author of the

report. The state’s failure to produce the author of the report to testify at trial

rendered the report inadmissible.
                                                                                            3

       Moreover, Crawford strongly suggests that State v. Hancock, 317 Or 5, 854

P2d 926 (1993), was wrongly decided. In Hancock, the court held that a trial court

must presume that a criminal defendant both stipulates to the admissibility of a crime

laboratory report and waives his right to cross-examine the author of the report, unless

the defendant either subpoenas, or requests that the prosecutor subpoena, the author of

the report. That holding contradicts the Court’s admonition in Crawford: “The

Constitution prescribes a procedure for determining the reliability of testimony in

criminal trials, and we, no less than the state courts, lack authority to replace it with

one of our own devising.” Crawford, 541 US at 67.

       The state, as the proponent of the evidence, is charged with the responsibility

for securing the author’s availability for cross-examination as a predicate to the

admission of the evidence. The notion that the defendant bears some responsibility

for facilitating the admission of adverse evidence constitutes unconstitutional burden

shifting. The trial court erred by admitting the laboratory report without the

accompanying testimony of the person who authored the report. Defendant requests

that this court reverse defendant’s conviction and remand the case for a new trial.



                                   Summary of Facts

       On June 28, 2005, at 8:10 p.m., undercover officer Craig Mendenhall was near

the bus shelter on the corner of SW Fifth and Washington in Portland, Multnomah

County, Oregon. Tr 35, 72. He saw defendant and Daniel Wold conduct a brief

conversation. Wold set $20 on the bus bench, and defendant placed a white wrapped
                                                                                         4

piece of plastic, the size of a pebble, on the bench seat. Wold picked up the piece of

plastic, and defendant picked up the $20. Tr 36-37. Mendenhall announced through

his earpiece radio that he had just witnessed a drug deal. Tr 37. Two uniformed

officers arrested Wold about a block away and searched him. Tr 38-39, 55, 63. They

found one rock of cocaine. Tr 63, 43-45; Ex 2-A.

       Undercover officer Chad Phifer also observed the interaction between

defendant and Wold and heard Mendenhall announce that a drug transaction had

occurred. Tr 73-75, 85-86. Phifer entered the bus shelter and asked defendant for a

“twenty,” which meant $20 worth of cocaine. Tr 75-76. Defendant responded that he

hadn’t seen Phifer before and asked him if he were a cop. Phifer said he was not a

cop. Defendant told Phifer to sit down on the bench. Phifer did so and waited about

15 seconds while defendant organized a few bills and looked at the reader board that

announced the bus schedule. Tr 76-77, 86. Phifer knew he was running out of time,

so he got up and walked to the corner where he saw Wold being arrested. Tr 77. He

noticed defendant walking toward him, so went back to meet him. Tr 77, 82-84.

They stopped near a drinking fountain. Tr 78. Defendant told Phifer to put his money

in the fountain. Phifer tried to hand defendant the money, but defendant said, “I ain’t

doing no hand-to-hand. Put your money in the fountain.” Tr 78. Defendant put his

hand toward the fountain. Phifer saw a bindle inside the fountain which was not there

before. Tr 78, 84. Phifer put a $20 bill in the fountain, picked up the bindle, and

walked away. Tr 78. Phifer gave the bindle to Mendenhall. Tr 42-44; Ex 2.
                                                                                            5

       Mendenhall observed the exchange at the water fountain, saw Phifer give a buy

signal, and broadcast the drug transaction over his earpiece radio. 40-41, 56, 67-68.

Two uniformed officers arrested defendant. Tr 40-41, 68. He had a $20 bill in his left

hand with a serial number that matched the number of the bill that Phifer had left in

the water fountain. Tr 68, 78. The officers searched defendant, but did not find

anything else. Tr 68, 70, 118.

       The substance seized from Wold and the substance that defendant passed to

Phifer were sent to the Oregon State Crime Lab. Tr 46; Ex 1 at ER 3. The crime lab

indicated that both substances were cocaine. Ex 1 at ER 3.

       At trial, defendant testified that he was at the bus shelter to purchase narcotics

to use that day. Tr 115-16, 118, 128. He bought a $10 rock of cocaine from Wold.

Tr 116. 128. He was then approached by Phifer, who asked for a “twenty.” Tr 117.

Defendant saw an opportunity to make $10, so he gave Phifer the cocaine that he had

purchased from Wold, in exchange for what turned out to be the marked $20 bill, at

the water fountain. Tr 117-18, 128.



                             ASSIGNMENT OF ERROR

       The trial court erred when it granted the state’s motion in limine to admit

Exhibit 1, the crime laboratory report, without presenting the testimony of the forensic

scientist who prepared the report.
                                                                                           6

Preservation of Error

       Immediately before trial, the state made a motion in limine to admit Exhibit 1,

a certified copy of the lab report, under ORS 475.235. Tr 5-6. Defendant did not

provide notice to the state that he intended to call the forensic scientist who prepared

the report as a witness at trial, and the prosecutor claimed that defense counsel

indicated, off the record, that he would not be subpoenaing the scientist. Tr 6.

       Defendant objected to the admission of the lab report, arguing that Hancock

was wrongly decided and that under the Sixth Amendment to the United States

Constitution, “the criminal defendant shall have the opportunity to be confronted with

witnesses against him, which is different from what Article I, Section 11 says.

‘Confronted with’ means witnesses will be brought to confront you, Your Honor.”

Tr 7. He argued that laboratory reports are testimonial evidence under Crawford, that

the Sixth Amendment requires the state to produce the witness, and that Crawford

overrules Hancock. Tr 7-10.

       The trial court admitted the evidence:

               “THE COURT: Okay. Okay. Well, the statute requires the
       Court, because it does use the ‘S’ word. It says ‘shall.’ Shall be
       accepted as prima facie evidence as a result of analytical findings. That
       the whole portion of 475.235(4) says that all prosecutions in which an
       analyst – an analysis of controlled substance or sample is conducted, a
       certified copy of the report signed by the director of a state forensic
       laboratory or the analyst or forensic scientist who conducted the
       analysis shall be accepted as prima facie evidence of the results.

              “And then (5) says, ‘notwithstanding this statute, the defendant
       may seek an analyst or forensic scientist to testify at the preliminary
       hearing and trial testimony at issue at no cost to the defendant.’
                                                                                          7

              “And that – that’s the state of the law right now. Crawford – the
       arguments about testimonial evidence, in this Court’s opinion the – it
       would appear to this Court that the preparation of a forensic report is
       more in the genre of a business record than testimony, than, quote,
       ‘testimony prepared for litigation’ because it’s just the nature of what’s
       being done.

               “Somebody gets a sample. They run some scientific tests on it
       and they write down the results of the testing. And that’s it. It’s – it
       may or may not be used in litigation. It’s not prepared for litigation.
       It’s prepared because the sample was given to them to test. And if the
       sample tested negative that would also be in the report, arguably that
       would not be prepared for litigation.

             “So the Court does not agree that it’s testimonial. And the state
       would be permitted to submit the report pursuant to ORS 475.235.”

Tr 15-16.

       Defendant renewed his objection and noted that he was relying on “the entire

dissent in State v. Hancock.” Tr 16.


Standard of Review

       Whether a trial court’s decision to admit a crime laboratory report violates a

defendant’s Confrontation Clause rights is a question of law. See e.g. State v. Miller,

208 Or App 424, 144 P3d 1052 (2006), opinion adhered to on reconsideration, __ Or

App __, __ P3d __ (Dec 27, 2006).
                                                                                            8

                                       Argument


I. Laboratory reports are testimonial evidence subject to the Sixth Amendment
Confrontation Clause requirements.

       The Sixth Amendment Confrontation Clause provides: “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him[.]” The Confrontation Clause applies to the states through the

Fourteenth Amendment. Pointer v. Texas, 380 US 400, 403, 85 S Ct 1065, 13 L Ed

2d 923 (1965). All testimonial evidence is subject to the requirements of the Sixth

Amendment – “unavailability and a prior opportunity for cross-examination.”

Crawford v. Washington, 541 US 36, 68, 124 S Ct 1354, 158 L Ed 2d 177 (2004).

       In Miller, this court held that laboratory reports prepared by the employees of

the Oregon State Police Forensic Laboratory (OSP lab) constitute testimonial

evidence. Miller, 208 Or App at 436. It explained, “The lab reports at issue here are

solemn declarations or affirmations of fact, made to the police department that

requested the results, for the purpose of establishing or proving a fact in issue in this

criminal prosecution[.]” Id. It specifically rejected the notion that lab reports are “the

sort of ‘business records’ referred to in the Crawford dictum.” Id. at 439.


II. Crawford strongly suggests that Hancock was wrongly decided.

       The Miller court also addressed the continuing validity of State v. Hancock,

317 Or 5, 854 P2d 926 (1993), and held that it remains controlling law. Miller, 208
                                                                                           9

Or App at 440; see also State v. Wells, 208 Or App 480, 144 P3d 1077 (2006) (same).

Defendant challenges that conclusion.1

       ORS 475.235(5) provides that a criminal defendant “may subpoena the analyst

or forensic scientist to testify at the preliminary hearing and trial of the issue at no

cost to the defendant.” At first glance, that provision appears redundant because ORS

136.567(1) essentially guarantees the same.2

       However, in Hancock, the Oregon Supreme Court explained that ORS

475.235(5) places a burden on the defendant to notify the state that he or she insists

on the right to cross-examine the person who performed the tests:

               “[ORS 475.235] is a legislative decision to make what amounts
       to the same offer on behalf of the prosecutor in every such case. A
       defendant is told by the statute that the state will let the defendant select
       the method by which the state will prove the nature of the controlled
       substance that is involved in the case. The statute’s offer to allow the
       defendant to procure the criminalist as a witness at no charge is just
       another way of saying that the state will call the criminalist if the
       defendant elects to have it do so. * * * The state will be required to
       attempt to prove its case by whatever means the defendant selects. The
       statute, in other words, is just a formalized way of asking a defendant to
       stipulate to use of the criminalist’s report, rather than requiring the
       criminalist to be called to establish that particular element of the
       offense. * * * ORS 475.235 is a formalized way of obtaining a
       stipulation to admissibility of the report. What the statute does is to tell
       a defendant that a small procedural step must be taken if she wants to
       exercise her confrontation right. The state has two ways to prove its
       case. One is to do it the old fashioned way, by calling the criminalist;
       the other is under the statute. Defendant has the choice to compel the

1
       The continuing validity of Hancock is before the Oregon Supreme Court in
State v. Birchfield, 204 Or App 689, 131 P3d 804 (2006), rev allowed, 341 Or 244
(2006).
2
        ORS 136.567(1) provides, in part: “A defendant in a criminal action is entitled,
at the expense of the state or city, to have subpoenas issued for not to exceed 10
witnesses within the state.”
                                                                                         10

       state to prove its case the old-fashioned way. All she need do is put the
       state on notice by subpoenaing the criminalist. If she does not, she
       waives the right to cross-examine the criminalist.”

317 Or at 11-12. Thus, under Hancock, a defendant presumptively forfeits his

Confrontation Clause rights unless he requests that the state subpoena the author of

the report (or subpoenas the author of the report himself). Otherwise, the trial court

must assume that the defendant (1) stipulated to the admissibility of the laboratory

report and (2) waived his right to cross-examination. That, in effect, presumptively

relieves the state of its burden to prove a material element of its case – that the

substance in question is, in fact, a controlled substance.

       The holding in Hancock rests on the court’s conclusion that ORS 475.235

imposes a de minimus burden on the defendant, which does not infringe on his due

process rights:

               “In State v. Mai, 294 Or 269, 274-75, 656 P2d 315 (1982), this
       court held that ‘it is doubtless permissible to establish ‘reasonable
       procedures’ which must be followed in order [for a defendant] to
       exercise a right guaranteed by the constitution. The procedures must
       not, however, result in unfairness.’ * * * We believe that ORS
       475.235(3) and (4) comprise a similarly ‘reasonable procedure’ that
       must be followed in order for a defendant to exercise a constitutional
       right – in this case, the confrontation right.

              “* * * * *

               “As with any proponent of evidence, the state has the burden of
       establishing the evidential foundation for the test report, either by using
       the procedure specified in ORS 475.235(3) or by calling the person who
       did the testing. The only ‘burden’ on the defendant is to notify the state,
       by subpoenaing the criminalist, that he or she insists on the right to
       cross-examine the person who performed the tests. This is no more
       burdensome than the requirement that a defendant, before trial, disclose
       to the state the names and addresses of witnesses, ORS 135.835(1); the
                                                                                        11

       reports of experts, ORS 135.835(2); documents and objections, ORS
       135.835(3); or give notice of an alibi defense, ORS 135.455.

       “* * * The burden of subpoenaing the criminalist is neither
       unreasonable nor unfair.”

Id. at 10, 12-13.

       The Ninth Circuit Court of Appeals considered the due process implications of

ORS 475.235 in Wigglesworth v. State of Or., 49 F3d 578 (9th Cir 1995). The

defendant in that case was tried before the Oregon Supreme Court decided Hancock.

The defendant argued below, and on appeal, that ORS 475.235 violated her due

process rights by requiring her to call the author of the laboratory report, thereby

relieving the prosecution of an essential element of its case. Id. at 580. The Ninth

Circuit noted that ORS 475.235 “poses twin risks to a defendant’s due process rights”

by requiring a defendant to call the author of the laboratory report as part of his or her

case-in-chief:

       “[ORS 475.235] places the defendant in a ‘Catch-22’ situation – call the
       criminalist who prepared the report during the defendant’s own case,
       and possibly bolster the prosecution’s case, or forego examination of the
       criminalist and perhaps lose an opportunity to expose a defect in the
       report’s authenticity.”

Id. at 581. The court expressed no opinion, however, on the due process implications

of the procedure announced in Hancock. The court simply noted:

               “This constitutional dilemma [the Catch-22 problem] was
       avoided by the Oregon Supreme Court in Hancock. There, the court
       interpreted [ORS] 475.235 to require that when requested by the
       defense, the prosecution must call the criminalist during its own case
       and before the report is received into evidence. Under this procedure, a
       defendant who wishes to challenge a lab report can put the prosecution
       to its proof and then cross-examine the criminalist.”
                                                                                        12

Id. at 581.

       Defendant perceives no practical difference between the requirement that (a)

he subpoena the criminalist as part his own case-in-chief, or (b) he request that the

state subpoena the criminalist as part of its case-in-chief. Either way, the defendant is

faced with a Hobson’s choice: play an active role in securing the testimony of an

adverse witness or do nothing and, by operation of statute, presumptively stipulate to

the admissibility of the laboratory report and waive the right to confrontation. Both

options impinge on the basic, fundamental due process requirement that the state bear

the burden of proving every essential element of its case. Although the notification

process itself may prove to be a de minimus task (i.e. calling the prosecutor on the

telephone and requesting that he or she subpoena the criminalist), any requirement

that a defendant affirmatively participate in the prosecution of the case against him

constitutes something significantly more than a de minimus infringement on his or her

due process rights.3

       The Crawford opinion strongly suggests that Hancock was wrongly decided.

In Crawford, the Court expressly held that the sacrosanct nature of a defendant’s




3
        In the typical case, a defendant is presumed to possess the right to confront an
adverse witness unless he forfeits that right. However, ORS 475.235 and Hancock
turn that presumption on its head by suggesting that a defendant is presumed to have
forfeited his right to confront an adverse witness unless he asserts that right. The
difference is important. In the typical case on appeal, the burden is on the state to
demonstrate a forfeiture of the right to confrontation. In the laboratory report context,
both at trial and on appeal, the burden is on the defendant to prove a negative – that he
did not forfeit his right to confrontation.
                                                                                          13

Confrontation Clause right prohibits a state legislature (or court) from enacting a

procedure to circumvent the normal procedure for testing the reliability of evidence:

“The Constitution prescribes a procedure for determining the reliability of testimony

in criminal trials, and we, no less than the state courts, lack the authority to replace it

with one of our own devising.” Crawford, 541 US at 67.

       This much is clear: the Constitution prescribes two fundamental, mandatory

procedures. First, that the state bears the burden of establishing every material

element of its case. See e.g. In re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d

368 (1970) (the Due Process Clause protects a defendant in a criminal case against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged). That burden is the prosecution’s

alone; it may not shift to the defendant. See e.g. Sandstrom v. Montana, 442 US 510,

521, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (an instruction that jurors might interpret as

relieving the state of the burden of proof enunciated in Winship “represents

constitutional error”).

       Second, that “[w]here testimonial evidence is at issue, * * * the Sixth

Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Crawford, 541 US at 68. That is the only

permissible way to test the reliability of such evidence. In sum, the admission of a

laboratory report without the accompanying testimony of the author of the report

constitutes error, regardless of a defendant’s non-compliance with ORS 475.235 as
                                                                                          14

interpreted by Hancock. Any other conclusion violates a defendant’s rights to

confrontation and due process.


III. Admission of the laboratory report was not harmless.

          A ruling by the trial court must be both erroneous and prejudicial to warrant

reversal. The appellate court may affirm despite the error only if it determines that

there is “little likelihood that the particular error affected the verdict.” State v. Davis,

336 Or 19, 32, 77 P3d 1111 (2003); Or Const, Art VII (Amended), § 3. Because of

the highly persuasive nature of scientific evidence, its erroneous admission is

particularly harmful. See State v. O'Key, 321 Or 285, 291, 899 P2d 663 (1995).

(“Evidence perceived by lay jurors to be scientific in nature possesses an unusually

high degree of persuasive power.”).

          In this case, the erroneously admitted laboratory report was the only scientific

evidence that the substances that passed between defendant and Wold and defendant

and Phifer were cocaine. During closing argument, the prosecutor argued that the

only contested issue was “are those two substances that [defendant] had in his hand

confirmed to be cocaine.” She then directed the jury’s attention to the laboratory

report:

                 “[PROSECUTOR]: Can I see State’s Exhibit Number 1?

                 “This is a certified copy of the lab report that you’ll have when
          you deliberate that tells you the two pieces of rock cocaine described by
          the police officers was indeed the controlled substance cocaine.”
                                                                                       15

Tr 145-56. Because of the highly persuasive nature of scientific evidence and the

prosecutor’s reliance on that evidence in this case, the admission of the laboratory

report was not harmless.



                                   CONCLUSION

       For the foregoing reasons, defendant respectfully prays that this court reverse

defendant’s convictions and remand for a new trial.



                                   Respectfully submitted,

                                   PETER GARTLAN #87046
                                   Chief Defender
                                   Legal Services Division
                                   Office of Public Defense Services




                                   ANNE FUJITA MUNSEY #99408
                                   Senior Deputy Public Defender

                                   Attorneys for Defendant-Appellant
                                   Anthony Swanagan,
                                   aka Anthony Jerome Swanagan

AFM:ak

								
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