Confronting the Evidence and Making the Right Objections

In Bennett v. State, 352 So. 3d 15 (Fla. 4th DCA 2022), defendant was adjudicated guilty of driving under the influence of controlled substances, and he appealed, arguing that the trial court violated his Sixth Amendment Confrontation Clause right by admitting a urinalysis toxicology report where the actual author of the report did not appear to testify at trial.

Although the appellate court agreed, the panel affirmed the conviction because the issue was not preserved for review, while emphasizing “that, under most circumstances, such forensic reports are inadmissible without the author’s testimony.”  Id. at 16. When arrested, the defendant’s breath test results came back negative for alcohol. He also consented to urinalysis, and the toxicology report showed the presence of controlled substances.

In Bennett’s case, one toxicologist performed the testing and prepared the report, and another toxicologist acted as the reviewer. At the time of trial, the first toxicologist was not available. The second toxicologist reached the same conclusions which the first toxicologist had documented in his report, but she did not sign the same page as the first toxicologist. Defense counsel objected to the admission of the report on hearsay grounds, arguing that it had been authored by a different toxicologist who did not appear to testify. The trial court overruled the objections, and the jury found the defendant guilty.

On appeal, Bennett challenged the admission of the toxicology report, arguing that his Sixth Amendment right to confrontation had been violated when the trial court allowed the admission of the report through the testimony of the reviewer of the report rather than the author who performed the testing and analyzed the data.

“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 U.S. 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.” See Brown v. State, 69 So. 3d 316, 318 (Fla. 4th DCA 2011).

The Florida Supreme Court held that “lab 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” in State v. Johnson, 982 So. 2d 672, 680 (Fla 2008) (court erred in admitting lab report establishing the illicit 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 rationale applies to various types of reports. See State v. Belvin, 986 So. 2d 516, 522 (Fla. 2008)  (“breath test affidavit fits squarely within the definition of ‘testimonial'”); Bullcoming v. New Mexico, 564 U.S. 647, 665 (2011) (“report of blood alcohol analysis” after defendant’s blood test was testimonial).

Where reports are testimonial, if the preparer is unavailable and the defendant lacked a prior opportunity to cross-examine the preparer, the admission of the reports violates the Sixth Amendment.

See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009) (reversing where court admitted affidavits of non-testifying analysts attesting that drug was cocaine); Belvin, supra, at 526 (court erred by admitting breath test affidavit without technician was unavailable, but the defendant did not have a prior opportunity to cross-examine her).

Bennett had a right to confront the preparer of the toxicology report who conducted the tests and analyzed the data rather than the reviewer. See also Johnson,  982 So. 2d at 673 (court erred by admitting lab test confirming that the substance were controlled through testimony of tester’s supervisor). There was no dispute that Bennett did not have a meaningful opportunity to cross-examine the preparer of the report, or that the state did not establish the unavailability of the witness.

Nevertheless, the appellate panel affirmed the conviction because the issue was not preserved for appeal, and does not raise fundamental error.

“[F]or an argument to be cognizable on appeal, it mist 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 (brackets added).

The Court explained that a “hearsay” objection does not preserve the argument that a Sixth Amendment confrontation right has been violated. See Lopez v. State, 888 So. 2d 693, 697 (Fla. 1st DCA 2004) (confrontation right guaranteed by the Sixth Amendment “differs from the kind of protection that is afforded by state evidence rules governing the admission of hearsay.”) ; see also Perry v. State, 927 So. 2d 228, 228 (Fla. 1st DCA 2006) (“‘hearsay’ objection fails to preserve the argument that one’s Sixth Amendment confrontation right has been violated.”) An objection based on the right to confrontation allows the court to focus its attention on whether the evidence is testimonial, whether a witness is unavailable, and whether the defendant had a previous opportunity for cross-examination. Crawford, supra, at 68.

The defense objection did not mention the Sixth Amendment, the Confrontation Clause, or Crawford, supra. Defense counsel also failed to make the objection that the evidence was testimonial, that the witness was unavailable, or that there was no prior opportunity for cross-examination. Bennett failed to call the trial court’s attention to the right inquiry. Since the issue was not preserved for appellate review, the conviction was affirmed.

The Bennett decision impresses upon criminal defense trial lawyers the importance of the constitutional right to confront witnesses and making the right objections to preserve important issues for appellate review.