Court Upholds Law Admitting Drug Test Results Without Analyst Testimony Absent Defendant’s Timely Demand
2007-2443. State v. Pasqualone, Slip Opinion No. 2009-Ohio-315.
Ashtabula App. No. 2007-A-0005, 2007-Ohio-6725. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Dinkelacker, JJ., concur.
Pfeifer, J., concurs in judgment only.
Patrick Dinkelacker, J., of the First Appellate District, sitting for Cupp, J.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-315.pdf 
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(Feb. 4, 2009) In a case addressing the right of a criminal defendant to cross examine a laboratory analyst whose report is offered as evidence against the defendant, the Supreme Court of Ohio ruled today that: 1) An attorney may waive a client’s Sixth Amendment right to confront a witness; and 2) When the state has met its obligations under R.C. 2925.51, the defendant’s failure to use the procedures of R.C. 2925.51(C) to demand that the analyst testify constitutes a waiver of the opportunity to cross-examine the analyst at trial, and allows the analyst’s report to be admitted as prima facie (sufficient on its face) evidence of the test results.
The Court’s unanimous decision, which reversed a ruling of the 11th District Court of Appeals, was authored by Justice Maureen O’Connor.
The case involved a challenge to R.C. 2925.51, a provision of state law stating that a laboratory report establishing the identity and weight of a drug at issue in a criminal case will be admitted into evidence without requiring in-court testimony by the analyst who prepared the report unless the defendant, within seven days after receiving a copy of the lab report, files with the prosecutor a written demand for the analyst to testify at trial.
Thomas Pasqualone of Geneva was stopped by a State Highway Patrol trooper for a minor traffic infraction. In the course of the traffic stop, the trooper determined that Pasqualone was driving while under suspension, and placed him under arrest. While performing a pat-down search of Pasqualone’s pockets pursuant to the arrest, the officer found a cigarette package containing a large “rock” of what appeared to be cocaine. The highway patrol’s crime laboratory subsequently analyzed the rock and issued a report indicating that it was cocaine and weighed 0.446 grams. Pasqualone was charged with a felony count of possession of cocaine. Pasqualone’s attorney was provided with a copy of the laboratory report. The attorney did not file a demand with the prosecutor pursuant to R.C. 2925.51(C) for the analyst who prepared the report to appear in court.
At trial, the state offered the lab report into evidence as prima facie evidence of the identity and weight of the drug found in Pasqualone’s possession. Pasqualone objected to the admission of the test report without in-court testimony by the analyst who prepared it. The trial court overruled his objection, citing R.C. 2925.51, and admitted the test results into evidence. Pasqualone was subsequently found guilty by a jury of possession of cocaine.
Pasqualone appealed. On review, the 11th District Court of Appeals overturned his conviction and remanded the case for a new trial. In a 2-1 majority opinion, the court of appeals held that, because the state sent a copy of the lab report and notification of the seven-day time limit for demanding that the analyst appear in court only to Pasqualone’s attorney, and not to the defendant personally, the attorney’s failure to file the required demand with the prosecutor within seven days did not constitute a valid waiver by Pasqualone of his Sixth Amendment right to confront the analyst in court. The state appealed the court of appeals’ ruling, and the Supreme Court agreed to review the case.
Writing for the Court in today’s decision, Justice O’Connor cited prior court decisions establishing that a defendant can waive his right to confront witnesses, and wrote that the court of appeals in this case “did not disagree with the general principle that Confrontation Clause rights can be waived ... but held that Pasqualone’s constitutional rights were violated in the specific circumstances of this case.”
After reviewing the statutory process set forth in R.C. 2925.51 for a defendant to either demand or waive cross examination of a laboratory analyst, and noting decisions by the 3rd, 5th and 10th District courts of appeals that found no constitutional flaw in that statutory scheme, Justice O’Connor identified two key conclusions reached by the 11th District in this case with which the Supreme Court disagreed.
She wrote: “First, we disagree with the court of appeals’ specific conclusion, which was the principal emphasis of its analysis, that an attorney cannot ‘waive confrontation rights on behalf of his or her client’ in the situation here.” While noting that state and federal courts have identified certain constitutional rights that may be waived only by the defendant personally, including the right to counsel, right to a jury trial, right to appeal and right to testify on his or her own behalf, Justice O’Connor pointed to other rights of defendants that courts have found may be waived by a defendant’s attorney.
“In United States v. Plitman,” wrote Justice O’Connor, “the (U.S.) Second Circuit observed that the rights that defense counsel may waive on a defendant’s behalf ‘because they concern strategic and tactical matters’ include selective introduction of evidence, stipulations, objections, and pretrial motions. In Plitman, the court recognized that courts should accord proper weight to defense counsel’s role in representing a client, including regarding waiver of the right to confrontation, viewing such a decision as a matter of trial tactics or strategy. ... Consistent with the above reasoning, most courts that have considered this issue have determined that the Confrontation Clause right implicated in this case is one of the rights that can be waived by counsel. ... The decision whether to cross-examine a particular witness is a ‘tactical decision’ ultimately controlled by a defendant’s trial counsel. We therefore disagree with the appellate court majority’s view that an attorney is not capable of waiving a client’s Confrontation Clause rights in an R.C. 2925.51 situation. ... (W)e perceive no inherent infirmity in the statutory directive that the report is not to be served on the defendant personally if the defendant is represented by an attorney. For the foregoing reasons, we hold that an attorney may waive a client’s Sixth Amendment right to confrontation in the appropriate situation. We further determine that the facts of this case present such an appropriate situation.”
The second conclusion of the 11th District with which Justice O’Connor expressed disagreement was the court of appeals’ holding that R.C. 2925.51 is deficient “because it does not require an affirmative demonstration by the accused that he does not wish to demand the testimony of the analyst.”
After reviewing state and federal court decisions addressing the need for an affirmative waiver, Justice O’Connor wrote: “The relevant question for purposes of this inquiry under the Confrontation Clause is whether the defendant had an opportunity for cross-examination. ... In upholding the constitutionality of the technician-request statute under review in Hinojos-Mendoza (v. People) (2007) the Supreme Court of Colorado stated, ‘The procedure provided in [the statute] for ensuring the presence of the lab technician at
trial does not deny a defendant the opportunity to cross-examine the technician, but simply requires that the defendant decide prior to trial whether he will conduct a cross-examination. The statute provides the opportunity for confrontation—only the timing of the defendant’s decision is changed.’ ... Our review of the above authorities and our consideration of the specifics of R.C. 2925.51 lead us to conclude that the statute adequately protects the Confrontation Clause rights of a criminal defendant by affording a reasonable opportunity to demand the testimony of the analyst who signed the report, so that the analyst may be cross-examined.”
Justice O’Connor’s opinion was joined by Chief Justice Thomas J. Moyer, Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger, and Judge Patrick Dinkelacker of the 1st District Court of Appeals, who sat by assignment in the case in place of Justice Robert R. Cupp. Justice Paul E. Pfeifer concurred in judgment only.
Contacts
Shelly M. Pratt, 440.576.3664, for the state & Ashtabula County prosecutor’s office.
Deborah L. Smith, 330.393.1584, for Thomas Pasqualone.