August 4, 2006
A quick side trip into techie stuff, and if you're reading this, chances are you're somewhat computer literate, and at least slightly interested in techie stuff. Internet Explorer has a new beta version which you can check out and download here. The tab feature is especially helpful. I'm one of those people who winds up with 17 different Explorer windows open, and having the ability to tab from one to another is nice. So is the ability to print only a portion of a web page, instead of the whole thing.
One more note on techie stuff: in a few weeks, this site will be getting a major upgrade. Some of the changes will just be cosmetic, but others will be functional: you'll have the ability to print out or email individual posts. I'll explain more when it goes up.
Powered by dreams of the future, on to the law:
I mentioned the other day that you can get sidetracked doing research, chasing down cases that have nothing to do with what you're looking for but sound interesting. The opposite situation is where you find a bunch of cases that are related, but not in ways that you would have thought; sort of a "six degrees of separation" effect.
For example, yesterday I talked about the 8th District's recent decision in State v. Bullitt, which held that scientific testimony was necessary to establish that a controlled substance was crack cocaine. The state had presented only a police officer's testimony identifying the drug, but defense counsel didn't make that the basis of his Rule 29 motion, arguing instead only that there wasn't sufficience that his client was the one who made the transaction. The court still threw out the conviction, on a plain error analysis.
As I mentioned, Bullitt was based on a 1975 Ohio Supreme Court decision, State v. Maupin, but failed to consider the much more recent decision of State v. McKee, which held that lay opinion evidence on drug identification was permissible if a proper foundation had been laid. The Court in McKee faced the same problem that the Bullitt court did -- defense counsel didn't object to the opinion evidence -- and resolved it in the same way. Justice Cook, though, wrote a dissenting opinion which argued that plain error wasn't applicable: since the various courts of appeals were split on the issue of whether expert testimony was necessary, the error in allowing it wasn't "plain." I'm not sure I buy into that analysis, but his opinion is a good place to start for an appellate lawyer with a plain error issue.
One of the other cases that Bullitt relied on was our district's decision in State v. Titsworth, where the court threw out a conviction for trafficking because the state had failed to present any laboratory evidence that the substance was heroin. The court acknowledged Maupin's conclusion that police testimony about marijuana was permissible, but held that heroin was horse of a different color. The more interesting aspect of Titsworth was Judge Corrigan's dissent, in which he argued that by failing to seek an independent test of the drugs, as he was entitled to under RC 2925.51(A), the defendant "waived his right to an independent laboratory analysis and any argument that the state failed to prove, through testing, that the alleged substance was heroin."
Now, Judge Corrigan has developed an annoying habit of writing logical opinions which I wind up agreeing with even when I don't want to, but I think he's off-base with this one. I doubt if the county commissioners would be pleased if every lawyer in a narcotics case demanded an independent drug test (which is paid for by the state, and can cost as much as an appointed lawyer does), on the grounds that if they failed to do so, the state was relieved of its obligation to prove an element of its case.
But RC 2925.51 also figured into the 3rd District's decision in State v. Bates, which involved the same issue as Bullit and Titsworth: can a police officer testify as to the identity of a controlled substance? Actually, the court didn't rule on that issue specifically. In Bates, the police officer read the lab report into evidence, as permitted under RC 2925.51(B). The defense argued that the report was inadmissible because it didn't comply with the statute's requirement that when the report was given to defendant prior to trial, it had to contain a provision notifying him that he could demand "live" testimony of the preparer by serving that request upon the prosecutor within seven days of the receipt of the report. The trial court let the report in, ruling that 2925.51 was a discovery provision and required only substantial compliance, but the appellate court reversed, deciding that the section was an evidentiary provision -- in essence, an exception to the hearsay rule -- and that strict compliance was necessary. The court noted in passing that since there had been no testimony by the officer as to the nature of the drugs, the lab report was the only evidence of that, when it went so did the case.
And the discerning reader will note that that raises the question of whether 2925.51 survives Crawford v. Washington, as we discussed last week. Probably so; since the defendant does have the option of demanding the testimony of the person performing the test, that would seem to satisfy Crawford's requirement that the defendant need only be afforded an opportunity to cross-examine.
At least, that's what Judge Kevin Bacon would probably rule.