Wednesday, September 28, 2011

DUI Laws - Kentucky Reverses Drug Conviction Based On Confrontation Violation

This case comes to DAD thanks to the watchful eyes of Founding Member William "Bubba" Head from Georgia. In Whittle v. COMMONWEALTH of Kentucky, --- S.W.3d ----, 2011 WL 4431158 (Ky.), the defendant was charged with possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender. Prior to trial, a juror indicated he was friends with the trooper in the case. In response to how his friendship with a state trooper would affect his participation on the jury, the juror initially stated that he believed he would remain impartial. However, when asked immediately thereafter whether there was “a possibility bias might creep in,” he agreed there was that possibility. Appellant, to no surprise, emphasizes the latter response: the juror's admission that there was a “possibility” that through his friendship with the state trooper, bias in favor of the prosecution could “creep in” to his adjudication. The trial court refused to strike the juror for cause, and on appeal that ruling was affirmed. "A juror must only be struck for cause if there is a probability he will be biased in favor of one party over the other. Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky.1958). Appellant admits that friendship with a law enforcement official does not create inherent bias in a juror toward the prosecution. See Penman v. Commonwealth, 194 S.W.3d 237, 252–53 (Ky.2006), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky.2010). As “even law enforcement personnel are not automatically excluded from the jury panel,” it would be absurd to automatically disqualify their friends. Id. at 252."

At trial, the lab analyst failed to appear, so a supervisor read the lab report into evidence. On appeal, the court found that the admission of the evidence that the powder was cocaine violated the Confrontation Clause, despite the fact that a supervisor was there to be cross-examined. In responding to a variety of State arguments attempting to distinguish the SCOTUS cases, the court stated:

"Despite the similarities between the issue presented here and that resolved by the U.S. Supreme Court in Melendez–Diaz, the Commonwealth ventures three arguments for why its authority does not mandate reversal here: It should be distinguished; should not apply retroactively; and any finding of error it mandates here is harmless. Presumably, the Commonwealth would make the same arguments as to Bullcoming.

The best-argument is that Melendez–Diaz should be distinguished from the case at hand. The Commonwealth attempts to distinguish the “certificates of analysis” entered into evidence in Melendez–Diaz because they, unlike the lab report here, were unaccompanied by live witness testimony. It claims that because Terry Comstock testified in court to the contents of this report, and Appellant was free to cross-examine him, his Confrontation Clause rights were satisfied.

This distinction would carry water if Comstock's testimony about testing was the only evidence admitted, and not the report itself. But the report was admitted into evidence. Appellant's opportunity to cross-examine Comstock does not satisfy any potential right to be confronted with the author of the report. See Crawford, 541 U.S. at 51 (noting that in type of English prosecution Confrontation Clause was designed to prevent, “Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court”). Even if Appellant could hypothetically demonstrate that Comstock was ignorant about chemistry or a complete liar, he still could not confront the author of the report."

Thus, the cocaine related convictions were overturned. Because there was no attempt to confront anyone on the marijuana charge (i.e. it appears to have been admitted without a contest) that conviction was affirmed.
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