Opinion
No. 1-790 / 00-2053.
Filed March 13, 2002.
Appeal from the Iowa District Court for Polk County, SCOTT ROSENBERG, Judge.
The defendant appeals from his convictions for possession of a controlled substance, possession of marijuana, and failure to possess a drug tax stamp. AFFIRMED.
Catherine K. Levine, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Defendant-appellant Cortez Armstrong appeals from the judgment and sentence entered following a jury verdict of guilty to the counts of possession of more than five grams of crack cocaine with the intent to deliver, in violation of Iowa Code section 124.401(1)(b)(3) (1999), failure to affix a drug tax stamp, in violation of sections 453B.3 and 453B.12, and possession of marijuana, in violation of section 124.401(5). Defendant argues on appeal that the admission of laboratory reports under section 691.2 violated his Sixth Amendment right to confrontation, and that there was insufficient evidence to support his convictions for possession with intent to deliver crack cocaine and failure to affix a drug tax stamp. We affirm.
On June 27, 2000, defendant was sitting in an indoor porch at 1532 21st Street in Des Moines, Iowa, with Kristopher Allen (a/k/a Harris) when Des Moines Police Officers Ortman and Hickey arrived, following a report of suspected drug trafficking at the residence. As they approached the officers smelled marijuana. Officer Ortman knocked on the door. In answer to defendant's asking his identity, Officer Ortman initially answered with his undercover name, "Tony," and then identified himself as an officer. Apparently defendant then partially closed the door, but as Officer Ortman talked to him, re-opened it enough to make entry possible. The officers came in through the door, which led them into a closed-in porch where defendant and Allen had been sitting, according to testimony. Allen disappeared into the house. While Officer Ortman pursued Allen, Officer Hickey remained on the porch with the defendant. While there he saw a baggie of what he described to be crack cocaine on a bench partially covered by a blanket, inches from where defendant had been sitting when Hickey first approached the house. He also saw another baggie with some small baggies and a scanner inside. Additionally, on or near that bench the officer saw and seized a box of cigars, a marijuana roach, and a container with liquid in it. Officer Ortman then performed a pat-down search of defendant and found a bag of marijuana in defendant's pocket. Other officers who appeared on the scene obtained and executed a search warrant. They seized several items, including a wrapper containing a green, leafy substance found in the living room, three rock substances located in the southwest bedroom, and a green leafy substance found in the southwest bedroom. The officers submitted the marijuana baggie found on defendant, the baggie of crack, the container with the liquid, and the marijuana roach, all of which were found on the porch, as well as the above mentioned items seized pursuant to the search warrant, to the state laboratory for identification through testing. The State used these lab reports in its case against the defendant.
I. CONSTITUTIONALITY OF IOWA CODE SECTION 691.2 (1999). Defendant claims on appeal that the statute under which the trial court allowed the introduction of these lab reports, specifically section 691.2 of the Iowa Code, is unconstitutional in that it violates defendant's Sixth Amendment right to confrontation. Defendant's authority for this contention is a recent finding by the Illinois Supreme Court, in People v. McClanahan, 729 N.E.2d 470, 478 (Ill. 2000), that an Illinois statute similarly providing for the introduction of lab reports without the preparer's in-court attestation as to their reliability was unconstitutional.
We review defendant's constitutional claim de novo. State v. Jefferson, 574 N.W.2d 268, 271 (Iowa 1997). The confrontation clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI; see also, Ohio v. Roberts, 448 U.S. 56, 62-63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 605 (1980); Iowa Const. art. 1, § 10. A face-to-face confrontation is essential except in limited cases and under very stringent requirements. See Morgan v. State, 469 N.W.2d 419, 423 (Iowa 1991). A face-to-face confrontation may be denied if denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. Id. (citations omitted).
We first address whether the protections of the confrontation clause are satisfied by the provision in section 691.2 requiring a criminalistics laboratory employee or technician to testify during a particular proceeding if the defendant makes such a request ten days in advance of a proceeding. In its previous inquiries into the constitutionality of this statute the Iowa Supreme Court has approached the issue from this angle, finding that the option to require a lab technician to testify, even if it requires defendant to make this request ten days prior to a proceeding or forfeit the right, satisfies defendant's right to confront and cross-examine adverse witnesses. In State v. Kramer, 231 N.W.2d 874, 880 (Iowa 1975), the court reasoned that the purpose of the confrontation clause was to secure the right for the accused the opportunity of cross-examination. Id., (emphasis added) (citations omitted). In concluding the defendant's right to cross-examine was an "opportunity," the court appeared to reason that the defendant's right was one he had to exercise to maintain. Id. Similarly, in State v. Davison, 245 N.W.2d 321, 323 (Iowa 1976), the court appeared to conclude that defendant needed to exercise his right to confrontation if he wished to maintain it.
More recent treatment of this issue by the United States Supreme Court indicates the contrary conclusion, that a defendant possesses a right to confrontation by default, and that he need not exercise this right to maintain it. In Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653-54, 98 L.Ed.2d 798, 811 (1988), the United States Supreme Court reasoned, in differentiating the compulsory process clause of the Sixth Amendment from the confrontation clause, that, unlike the confrontation clause's automatic imposition of a right upon the defendant, the availability of the compulsory clause was entirely dependant upon the defendant's initiative. The Illinois Supreme Court recently adopted this reasoning in McClanahan, 729 N.E.2d at 476, for its conclusion that the requirement upon the defendant to request testimony by the preparer of a lab report "impermissibly [required] the defendant to take affirmative action to secure a right that he [had] already been constitutionally guaranteed or be deemed to have waived that right." In the case at hand, defendant argues that Iowa law similarly conflicts with Taylor and is similarly unconstitutional insofar as it requires the defendant to assert his right to confrontation in order to possess it.
Without deciding that the confrontation clause must be exercised to be maintained, but finding that the statutory option to request the presence of a lab technician does not summarily dismiss the confrontation issue, we turn to the substantive requirements of the confrontation clause. The confrontation clause plays an integral role in the administration of justice, but it must occasionally give way to considerations of public policy and the necessities of the case. See Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409, 411 (1895). We recognize that a competing interest to the right of the accused under the confrontation clause is the State's interest "in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings." Roberts, 448 U.S. at 64, 100 S.Ct. at 2538, 65 L.Ed.2d at 607.
The confrontation clause permits hearsay evidence to be admitted against a defendant only where either the evidence falls within a firmly rooted hearsay exception or where particularized guarantees of trustworthiness assure the reliability of the evidence. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.
In arguing that the lab reports in this case are in violation of the confrontation clause, defendant claims they do not fall under any firmly rooted hearsay exception. The State concedes that the Iowa Supreme Court would probably find laboratory reports to be inadmissible under the rule 803(8)(B) investigative report exception to the business record exception to the hearsay rule. See State v. McCurry, 544 N.W.2d 444, 445-47 (Iowa 1996). We are inclined to agree with defendant that laboratory reports are inadmissible as an exception to hearsay if they are introduced without accompanying testimony by their preparer. See McCurry, 544 N.W.2d at 445-48.
We therefore look to the alternative means under the confrontation clause under which hearsay may be admitted, namely whether the hearsay possesses particularized guarantees of trustworthiness. Defendant again refers us to McClanahan, 729 N.E.2d at 475, where the Illinois Supreme Court also determined that laboratory reports did not possess such particularized guarantees of trustworthiness to justify their being introduced without accompanying testimony as to their reliability. The McClanahan court found that although the Illinois statute required a notarized statement by the preparer of the report indicating 1) identity of the preparer, 2) his or her employment by the Department of the State Police, 3) name and location of the laboratory, 4) performance of analysis as part of regular duties, and 5) qualification by education, training and experience, the reports nevertheless contained insufficient guarantees of trustworthiness. Id. at 473, 475. The court reasoned that the statute only provided for "vague assurances" of trustworthiness, that it did not require the State to provide any information as to how the tests were conducted, what the accepted scientific procedures were, or what qualifications and training the lab employees had. Id. at 475.
As the defendant points out, section 691.2 provides for the admission of a lab report without even one of these accompanying guarantees of trustworthiness. The State argues in response, with authority, that the very nature of the reports supplies the requisite guarantees: lab reports document the performance of routine tests; these sorts of lab tests would be mechanically objective; the tests would have been performed by qualified professionals; and the results recorded would have been recorded contemporaneously. See Minner v. Kerby, 30 F.3d 1311, 1314-15 (10th Cir. 1994); Reardon v. Manson, 806 F.2d 39, 41 (2d Cir. 1986). The State further argues that the right to confrontation really would not serve a purpose here: it would be unlikely that a chemist would remember any particular one of the many tests he or she performs, and cross-examination would therefore be fruitless. Reardon, 806 F.2d at 41.
We note that the State offers additional authority for its contention that the nature of the tests themselves demonstrates their trustworthiness. See Fischer v. Powers, 957 F.2d 609, 610 (8th Cir. 1992); State v. Huggins, 659 P.2d 613, 616-17 (Alaska Ct. App. 1982); Howard v. United States, 473 A.2d 835, 839 (D.C. 1984); State v. Smith, 323 S.E.2d 316, 318 (N.C. 1984) (Martin, J., dissenting); State v. Hancock, 854 P.2d 926, 930 (Or. 1993) (Unis, J. dissenting); State v. Hughes, 713 S.W.2d 58, 62 (Tenn. 1986). But we must also note defendant's very relevant response to the above authority, namely that all of the above cases involved statutes where there was at least some statutory requirement (e.g., accompanying affidavit, certification) tending to support the trustworthiness of the lab report. Iowa, in contrast, has no such statutory requirement to establish trustworthiness and must rely solely on the nature of the investigative report to establish "particularized guarantees of trustworthiness."
In Iowa there exists a strong presumption that a regularly enacted statute is constitutional. Kramer, 231 N.W.2d at 880. Given our own supreme court's decisions in Kramer and Davison upholding the constitutionality of a presumptive-reliability statute, as well as the above authority indicating many other states have found their own presumptive-reliability statutes do not violate constitutional protections, combined with the inherent reliability of laboratory reports which demonstrates their particularized guarantees of trustworthiness, we find section 691.2 of the Iowa Code is constitutional.
II. SUFFICIENCY OF THE EVIDENCE.
Defendant also claims on appeal that there was insufficient evidence to support his conviction for possession of crack cocaine with intent to deliver and failure to possess a drug tax stamp. The State argues that defendant failed to preserve this issue for appellate review. Without deciding whether this issue was preserved, we find there was substantial evidence to support defendant's convictions.
Challenges to the sufficiency of the evidence are reviewed for correction of errors at law. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000). In reviewing challenges to the sufficiency of the evidence supporting a guilty verdict we consider all of the evidence in the record in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence. Id.
We find that there was sufficient evidence to support a finding that defendant possessed crack cocaine with the intent to deliver it. Testimony indicated that defendant was sitting on the bench where a large baggie of crack cocaine was found when officers arrived at the house. Only one other person was occupying the house when officers arrived, and that person was sitting with defendant on the porch. Constructive possession may be inferred by the fact finder when the thing possessed is found in a place subject to the defendant's dominion and control, or to the joint dominion and control of the defendant and other persons. State v. Padavich, 536 N.W.2d 743, 751 (Iowa 1995). The baggie was partially visible. Defendant had a large amount of cash in his pockets and shoes, as well as a baggie of marijuana on his person. Testimony indicated that a large amount of cash may be evidence of drug proceeds. While defendant was at the house, where additional crack cocaine was subsequently located, at least three individuals came to the house to buy the crack cocaine. We find this evidence substantially supports the finding that defendant possessed crack cocaine with intent to deliver it. In that there was no tax stamp on the cocaine, we also find the evidence supported the drug tax stamp violation.
AFFIRMED.