DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD BENNETT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2925
[November 30, 2022]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Robert Panse, Judge; L.T. Case No. 50-2020-CT-009632-
AXXX-MB.
Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessica L.
Underwood, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
Richard Bennett appeals an adjudication of guilt for misdemeanor
driving under the influence of controlled substances. He argues, among
other issues, that the trial court violated his Sixth Amendment
Confrontation Clause right by admitting his urinalysis toxicology report
where the author of the report did not testify at trial. We agree that this
was error, but we must affirm because the issue was not preserved for
review. We nevertheless write to impress that, under most circumstances,
such forensic reports are inadmissible without the author’s testimony. As
to all other issues raised, we affirm without discussion.
On the night of his arrest, Bennett’s breath test results were negative
for alcohol. He consented to a urine test, and his toxicology report revealed
the presence of controlled substances.
Dr. Xiaoqin Shan, a senior forensic scientist with the Palm Beach
County Sheriff’s Office, testified for the state at trial. Dr. Shan explained
the standard operating procedures for the crime lab for testing urine
toxicology, which include the use of several instruments to confirm the
presence of drugs.
Dr. Shan explained that two toxicologists are involved in each
toxicology report that is prepared. The first toxicologist takes an inventory
of the evidence, ensures it is properly sealed and labeled, performs
screening tests to see what classes or kinds of drugs are present in the
specimen, compiles the analytical data, makes a list of the findings, and
prepares a toxicology report. The second toxicologist, called the reviewer,
reviews the entire toxicology file that was generated by the first
toxicologist, ensures that all quality control procedures and standard
operating procedures were followed and all quality control criteria are met,
and ensures that all the conclusions and the results of the report reflect
the analysis results. If no errors are found, the report is issued.
In this case, Russell Miller, a senior forensic scientist, acted as the first
toxicologist who performed the testing and prepared the report, and Dr.
Shan acted as the reviewer. Miller signed the toxicology report that listed
the controlled substances detected in the sample. Dr. Shan signed a “TX
Toxicology Review Form” attached to the report. As of the time of trial,
Miller was no longer a senior forensic scientist with PBSO, although the
record does not reflect why. Dr. Shan confirmed that, with respect to the
report of Bennett’s toxicology testing, she ensured all quality control
procedures were followed, reviewed all of the data, and reached the same
conclusions which Miller documented in the report. When asked if she
authored the report, Dr. Shan stated, “I reviewed the report and therefore
I’m part of the authorizing of the report,” but she acknowledged that she
did not physically sign the same page as Miller.
Bennett objected to the admission of the toxicology report on the basis
of hearsay, explaining that it was authored by a different toxicologist who
did not testify. The trial court overruled the objections based on Dr. Shan’s
review, analysis, and conclusions.
The jury found Bennett guilty.
On appeal, Bennett challenges the admission of the toxicology report,
which he contends was testimonial hearsay. He argues that his Sixth
Amendment right to confrontation was violated when the trial court
allowed the admission of the report through the testimony of Dr. Shan,
when Miller, who did not testify at trial, conducted the tests, analyzed the
data, and authored the actual toxicology report.
2
“In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .” Amend. VI, U.S. Const.
In Crawford v. Washington,
541 U.S. 36 (2004), “the Supreme Court held
that the admission of a hearsay statement made by a declarant who does
not testify at trial violates the Sixth Amendment if (1) the statement is
testimonial, (2) the declarant is unavailable, and (3) the defendant lacked
a prior opportunity for cross-examination of the declarant.” Brown v.
State,
69 So. 3d 316, 318 (Fla. 4th DCA 2011).
The class of testimonial statements covered by the Confrontation
Clause was initially described by the Supreme Court as follows:
Various formulations of this core class of testimonial
statements exist: 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 . . . .
Crawford,
541 U.S. at 51-52 (alteration in original) (citations and
quotation marks omitted). The Court later clarified:
Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate
that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.
Davis v. Washington,
547 U.S. 813, 822 (2006).
More specifically, courts have found that forensic lab reports can
constitute testimonial hearsay: “[L]ab reports and similar materials, when
prepared for criminal trials, [are] testimonial statements and . . . their
admission without the preparer’s testimony runs afoul of Crawford and
the Confrontation Clause.” State v. Johnson,
982 So. 2d 672, 680 (Fla.
3
2008) (trial court erred by admitting lab report establishing illegal nature
of substances under business record exception where preparer did not
testify and report “was clearly prepared in anticipation of trial and meant
to establish an element of the crime”). This conclusion has been applied
in cases involving various types of forensic reports. See, e.g., Bullcoming
v. New Mexico,
564 U.S. 647, 665 (2011) (“report of blood alcohol analysis”
following test of defendant’s drawn blood was testimonial); State v. Belvin,
986 So. 2d 516, 522 (Fla. 2008) (“[a] breath test affidavit fits squarely
within the definition of ‘testimonial’”).
Where the reports are testimonial, their admission violates the Sixth
Amendment if the preparer is unavailable and the defendant lacked a prior
opportunity to cross-examine the preparer. See, e.g., Melendez-Diaz v.
Massachusetts,
557 U.S. 305, 329 (2009) (reversing where trial court
admitted three affidavits of non-testifying analysts attesting that
substances were cocaine); Belvin,
986 So. 2d at 526 (trial court erred by
admitting breath test affidavit without the affiant-technician testifying at
trial, where state established affiant was unavailable but defendant did
not have a prior opportunity to cross-examine her).
The toxicology report at issue in the instant case constitutes a
testimonial statement. It was prepared for the prosecution, in the absence
of emergent circumstances, is accusatory, tends to prove a material
element of the crime (impairment), and is a “pretrial statement[] that [the]
declarant[] would reasonably expect to be used prosecutorially.” See
Crawford,
541 U.S. at 51. Consequently, Bennett had a right to confront
the person who prepared it. The parties do not dispute that Bennett did
not have a meaningful opportunity to cross-examine Miller or that the
state did not establish Miller’s unavailability.
The state argues that the Confrontation Clause was not implicated
because Shan was one of two “analysts” or “authors” who prepared the
report, she engaged in an extensive peer review process that involved
reviewing all the data and adopting the conclusions as her own, and
Bennett was able to meaningfully cross-examine her at trial.
The Supreme Court rejected a similar, though not identical, argument
under similar facts in Bullcoming. There, in the defendant’s trial for driving
while intoxicated, the state introduced a forensic lab report certifying that
the defendant’s blood alcohol concentration was well above the legal limit.
564 U.S. at 651. The state did not call the certifying analyst, Caylor, but
rather called “another analyst [Razatos] who 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
4
determined that this other analyst’s testimony did not satisfy the Sixth
Amendment:
Recognizing that admission of the blood-alcohol analysis
depended on “live, in-court testimony [by] a qualified analyst,”
147 N.M., at 496, 226 P.3d, at 10, the New Mexico Supreme
Court believed that Razatos could substitute for Caylor
because Razatos “qualified as an expert witness with respect
to the gas chromatograph machine and the SLD’s laboratory
procedures,” id., at 495, 226 P.3d, at 9. But surrogate
testimony of the kind Razatos was equipped to give could not
convey what Caylor knew or observed about the events his
certification concerned, i.e., the particular test and testing
process he employed. Nor could such surrogate testimony
expose any lapses or lies on the certifying analyst’s part.
Significant here, Razatos had no knowledge of the reason why
Caylor had been placed on unpaid leave. With Caylor on the
stand, Bullcoming’s counsel could have asked questions
designed to reveal whether incompetence, evasiveness, or
dishonesty accounted for Caylor’s removal from his
workstation. Notable in this regard, the State never asserted
that Caylor was “unavailable”; the prosecution conveyed only
that Caylor was on uncompensated leave. Nor did the State
assert that Razatos had any “independent opinion”
concerning Bullcoming’s BAC. . . . In this light, Caylor’s live
testimony could hardly be typed “a hollow formality[.]”
Id. at 661-62 (footnotes omitted) (first alteration in original); see also
Johnson,
982 So. 2d at 673 (trial court erred by admitting lab test
confirming substances possessed were controlled through testimony of
tester’s supervisor). The Court noted, “[T]he analysts who write reports
that the prosecution introduces must be made available for confrontation
even if they possess ‘the scientific acumen of Mme. Curie and the veracity
of Mother Teresa.’” Bullcoming,
564 U.S. at 661 (quoting Melendez–Diaz,
557 U.S. at 319-20 n.6).
However, subsequent cases established that all is not lost for lab
reports prepared by an analyst no longer employed by the state. Following
Bullcoming, a plurality of the Supreme Court determined in Williams v.
Illinois,
567 U.S. 50, 57-58 (2012), that testimony concerning a forensic
report may be admissible through an expert who did not prepare the
report. The Florida Supreme Court summarized Williams as follows:
5
In Williams, a plurality of the Supreme Court concluded
that an expert witness could offer an opinion about a forensic
report without ultimately testifying to the underlying truth of
that report.
132 S.Ct. at 2227–28. The report itself was
prepared by a nontestifying witness, but was not admitted.
Id.
The plurality, written by Justice Alito and joined by Chief
Justice Roberts and Justices Kennedy and Breyer, further
held that the report itself would not have violated the
Confrontation Clause, even if it had been admitted. Id. at
2242. The plurality concluded that the report was not
testimonial because it was generated at a time when a
dangerous, unknown rapist was at large. Id. at 2243-44
(citing Michigan v. Bryant,
562 U.S. 344, 359–62,
131 S.Ct.
1143,
179 L.Ed.2d 93 (2011)). Justice Thomas concurred in
the judgment on the basis that the evidence was admissible
“solely because [the report] lacked the requisite ‘formality and
solemnity’ to be considered ‘testimonial’ for the purposes of
the Confrontation Clause.” Id. at 2255 (Thomas, J.,
concurring in the judgment) (citing Bryant,
562 U.S. at 361,
131 S.Ct. 1143).
Calloway v. State,
210 So. 3d 1160, 1194 (Fla. 2017) (footnote omitted).
Similarly, in Smith v. State,
28 So. 3d 838, 853-55 (Fla. 2009), the
Florida Supreme Court rejected an argument that the person who
conducted a DNA test had to testify in order to avoid a Sixth Amendment
Confrontation Clause violation. There, non-testifying biologists performed
the DNA test, but the state presented the testimony of “the FBI team
supervisor, a forensic DNA examiner who interpreted the data, formulated
the conclusions, and prepared the official report.”
Id. at 853. The Florida
Supreme Court emphasized the supervisor’s testimony that she “draw[s]
all the interpretations and all the conclusions.”
Id. (emphasis in original);
see also United States v. Moon,
512 F.3d 359, 362 (7th Cir. 2008) (“the
Confrontation Clause does not forbid the use of raw data produced by
scientific instruments, though the interpretation of those data may be
testimonial” (emphasis in original)); United States v. Washington,
498 F.3d
225, 232 (4th Cir. 2007) (trial court did not err by admitting testimony of
lab director who did not perform test on blood sample but rather relied on
raw data generated by machines after lab technicians subjected sample to
testing, and explaining that “raw data printed out by the machines are not
testimonial hearsay statements”). The court distinguished Johnson and
Belvin, stating that “in each of these cases, the person who prepared the
report of the relevant results did not testify.” Smith,
28 So. 3d at 854
(emphasis omitted).
6
In Calloway, 210 So. 3d at 1195, the Florida Supreme Court applied
Bullcoming, Williams, and Smith to determine that Calloway’s
confrontation rights were not violated where one medical examiner (“ME”)
performed the autopsy, but a surrogate ME testified at trial. The Calloway
court reasoned that the surrogate ME’s testimony did not violate the
Confrontation Clause where the surrogate ME was available to testify and
was subject to cross-examination, the autopsy reports of the original ME
were not admitted into evidence, the surrogate ME “clearly explained to
the jury that his independent opinion was derived from the photographs
taken by investigators at the scene and from [the original ME]’s autopsy
reports,” and the surrogate ME testified that he drew his own independent
conclusions. Id.
With this precedent in mind, we turn to the facts at hand. We are
compelled to reject the state’s argument that Dr. Shan’s testimony was
sufficient to avoid a violation of the Sixth Amendment. We recognize that
the evidence pertaining to Shan’s “peer review” and adoption of
conclusions tend to support an argument that Dr. Shan had an
independent opinion. Per Williams, Smith, and Calloway, and assuming
foundational requirements were met, it would have been permissible for
Dr. Shan to testify to conclusions she reached utilizing raw data obtained
in Miller’s tests. But Dr. Shan’s conclusions do not justify the admission
of the testimonial hearsay toxicology report authored by Miller, which is a
critical distinction between this case and Calloway. As in Bullcoming, Dr.
Shan’s testimony did not establish why Miller was no longer employed with
the lab, and her testimony could not expose any lapses or lies on Miller’s
part. Thus, Miller’s report was erroneously admitted.
Nevertheless, we affirm because the issue was not preserved, and
Bennett does not raise fundamental error. “[F]or an argument to be
cognizable on appeal, it must be the specific contention asserted as legal
ground for the objection . . . below.” Aills v. Boemi,
29 So. 3d 1105, 1108
(Fla. 2010) (quoting Harrell v. State,
894 So. 2d 935, 940 (Fla. 2005)). “[N]o
magic words are required,” but “the concern articulated in the objection
must be sufficiently specific to inform the court of the perceived error.” Id.
at 1109.
Despite the close relationship between the exclusion of hearsay and the
right to confront witnesses, a “hearsay” objection does not preserve an
argument that a Sixth Amendment confrontation right has been violated:
The right of confrontation guaranteed by the Sixth
Amendment “differs from the kind of protection that is
7
afforded by state evidence rules governing the admission of
hearsay.” Lopez v. State,
888 So. 2d 693, 697 (Fla. 1st DCA
2004). An objection specifically based on Crawford serves to
focus the trial court’s attention on the salient inquiry required
by that decision, i.e., whether the evidence is “testimonial,”
whether the witness is “unavailable,” and whether there was
a “prior opportunity for cross-examination.” Crawford,
541
U.S. at 68,
124 S. Ct. 1354.
Mencos v. State,
909 So. 2d 349, 351 (Fla. 4th DCA 2005); see also Perry
v. State,
927 So. 2d 228, 228 (Fla. 1st DCA 2006) (“A simple ‘hearsay’
objection fails to preserve the argument that one’s Sixth Amendment
confrontation right has been violated.”).
At trial, Bennett objected on the basis of “hearsay,” asserting that the
report was drafted by someone “no longer with the office” who “wasn’t
called to testify today,” and that Dr. Shan did not actually test the urine.
His objection did not mention the Sixth Amendment, the Confrontation
Clause, or Crawford or its progeny, or whether the evidence was
testimonial, the witness was unavailable, or there was a prior opportunity
for cross-examination. 1 Thus, Bennett failed to call the trial court’s
attention to the salient inquiry. If he had, the state may have been able to
present its case based on Dr. Shan’s analysis of the raw data and without
admitting the toxicology report. But, the issue was not preserved for
review, and we affirm.
Affirmed.
1 We distinguish the instant case from Evans v. State,
838 So. 2d 1090, 1097
(Fla. 2002). There, the defendant raised a Sixth Amendment confrontation right
argument with respect to presentence investigation reports admitted at the
penalty phase of his trial, at which a sentence of death or life imprisonment would
be imposed. The Florida Supreme Court rejected the state’s argument that the
issue was not preserved, stating, “Although Evans’ counsel did not specifically
assert a Sixth Amendment challenge, the hearsay objection raised is closely
related to the right of confrontation.”
Id. at 1097 n.5. On the merits, the court
determined that the reports were properly admitted pursuant to section
921.141(1), Florida Statutes (1999), which permitted such evidence in the penalty
phase for capital felonies, “regardless of its admissibility under the exclusionary
rules of evidence, provided the defendant is accorded a fair opportunity to rebut
any hearsay statements,” and because the defendant had a fair opportunity to
rebut the reports. Evans,
838 So. 2d at 1097.
Evans was decided prior to Crawford, and, consequently, the salient inquiry in
Evans did not involve the elements that are now at issue.
8
LEVINE and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
9
