State of Maine v. Macie N. Jones

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2018 ME 17

Docket: Aro-17-166

Argued: November 14, 2017

Decided: January 25, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

MACIE N. JONES

GORMAN, J.

[¶1] Macie N. Jones appeals from a judgment of conviction for unlawful

trafficking of a schedule W drug (Class B), 17-A M.R.S. §§ 1102(1)(A),

1103(1-A)(A) (2017), entered by the trial court (Aroostook County,

Stewart, J.) after a jury trial. Jones argues that 17-A M.R.S. § 1112 (2017) is

facially unconstitutional and that the court’s admission of a lab certificate in

lieu of live witness testimony pursuant to that statute was a violation of her

right of confrontation. We conclude that section 1112 is facially

constitutional, and we affirm the judgment.

I. BACKGROUND

[¶2] Viewing the evidence presented at trial in the light most favorable

to the State, the jury rationally could have found the following facts beyond a

2

reasonable doubt. See State v. Cummings, 2017 ME 143, ¶ 12, 166 A.3d 996.

On December 16, 2015, an agent with the Maine Drug Enforcement Agency

arranged to use a confidential informant to make a controlled purchase of

methamphetamine from a man who was the subject of an investigation. The

purchase took place in Jones’s vehicle, where Jones was present. During the

transaction, Jones made various incriminating statements regarding her

involvement in producing and selling methamphetamine, including that the

drug the informant was purchasing was “better than anything we’ve made.”

Jones later admitted to law enforcement that she had been involved with

obtaining the ingredients for and producing methamphetamine.

[¶3] Jones was indicted for unlawful trafficking of a schedule W drug

(methamphetamine) (Class B), 17-A M.R.S. §§ 1102(1)(A), 1103(1-A)(A). She

pleaded not guilty to the charge.

[¶4] The court conducted a jury trial on February 3, 2017. In its

witness list provided before trial, the State named a forensic chemist as one of

the witnesses it “may call” at trial. At trial, the State instead sought admission

of the chemist’s certificate stating that a drug analysis established that the

substance the informant purchased on December 16, 2015, was in fact 136.1

milligrams of methamphetamine. The court admitted the certificate over

3

Jones’s objection, reasoning that Jones had not provided ten days’ notice of

her request for live testimony of the chemist in accordance with 17-A M.R.S.

§ 1112.

[¶5] The jury found Jones guilty of the offense. The court entered a

judgment on the verdict, sentencing Jones to forty-two months in prison with

all but fifteen months suspended; two years of probation; and $635 in fines,

restitution, and fees. Jones appeals.

II. DISCUSSION

[¶6] The sole matter at issue is the court’s admission of the lab

certificate identifying the substance exchanged in the controlled purchase as

methamphetamine. The court admitted the lab certificate in lieu of the

chemist’s testimony pursuant to 17-A M.R.S. § 1112, which provides that a

drug analysis certificate “is admissible in evidence in a court of the State, and

gives rise to a permissible inference . . . that the composition, quality and

quantity of the drug or substance are as stated in the certificate, unless, within

10 days[’] written notice to the prosecution, the defendant requests that a

qualified witness” provide live testimony of those facts.1 17-A M.R.S.

1 Title 17-A M.R.S. § 1112 (2017) provides, in its entirety, as follows:

§ 1112. Analysis of scheduled drugs

4

§ 1112(1); see State v. Navarro, 621 A.2d 408, 412 (Me. 1993) (“Once the

defendant requests a qualified witness, the certificate is neither admissible

nor prima facie evidence of the composition, quality, and quantity of the drug

or substance stated therein. Once the request is made, the State has the

burden of producing a witness who can testify as to the analysis procedures

and results.” (citation omitted) (quotation marks omitted)). Jones agrees that

she did not request, within ten days before trial, that the State produce a live

witness to identify the drug, and therefore does not appear to challenge the

State’s or the court’s compliance with section 1112. Rather, Jones contends

that section 1112 is facially unconstitutional in that it violates the

Confrontation Clause as interpreted by the United States Supreme Court in

1. A laboratory that receives a drug or substance from a law enforcement officer

or agency for analysis as a scheduled drug shall, if it is capable of so doing, analyze

the same as requested by a method designed to accurately determine the

composition of the substance, including by chemical means, visual examination, or

both, and shall issue a certificate stating the results of the analysis. The certificate,

when duly signed and sworn to by a person certified as qualified for this purpose by

the Department of Health and Human Services under certification standards set by

that department, is admissible in evidence in a court of the State, and gives rise to a

permissible inference under the Maine Rules of Evidence, Rule 303 that the

composition, quality and quantity of the drug or substance are as stated in the

certificate, unless, within 10 days[’] written notice to the prosecution, the defendant

requests that a qualified witness testify as to the composition, quality and quantity.

2. Transfers of drugs and substances to and from a laboratory for purposes of

analysis under this chapter may be by certified or registered mail, and when so

made shall be deemed to comply with all the requirements regarding the continuity

of custody of physical evidence.

5

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). See U.S. Const. amend.

VI.

[¶7] We review de novo the constitutionality of a statute, Doe v.

Williams, 2013 ME 24, ¶ 11, 61 A.3d 718, giving the statute a “heavy

presumption of constitutionality,” League of Women Voters v. Sec’y of State,

683 A.2d 769, 771 (Me. 1996). As the party challenging the facial

constitutionality of the statute, it is Jones’s burden to establish, beyond a

reasonable doubt, that there is “no set of circumstances” in which the statute

may operate in a constitutional manner. Guardianship of Chamberlain, 2015

ME 76, ¶ 10, 118 A.3d 229 (quotation marks omitted); see League of Women

Voters, 683 A.2d at 771-72.

A. Confrontation Clause Rights

[¶8] The Confrontation Clause—applicable to the states through the

Fourteenth Amendment—requires that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

him.”2 U.S. Const. amends. VI, XIV; see Melendez-Diaz, 557 U.S. at 309; State v.

Murphy, 2010 ME 28, ¶ 9, 991 A.2d 35. The Supreme Court has characterized

the Confrontation Clause as a “procedural rather than a substantive

2 The Maine Constitution similarly provides that “[i]n all criminal prosecutions, the accused

shall have a right . . . [t]o be confronted by the witnesses against the accused.” Me. Const. art. I, § 6.

6

guarantee,” stating, “It commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of

cross-examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004); see

Murphy, 2010 ME 28, ¶ 11, 991 A.2d 35. To that end, the Confrontation Clause

prohibits the “admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53-54.

[¶9] The Supreme Court has further clarified what is “testimonial”

according to the nature and purpose of the evidence, defining “testimony” as

any “solemn declaration or affirmation made for the purpose of establishing

or proving some fact.” Id. at 51 (quotation marks omitted). Thus, the “core

class of testimonial statements” includes (1) “ex parte in-court testimony or its

functional equivalent” 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”; (2) “extrajudicial statements contained in formalized

testimonial materials, such as affidavits, depositions, prior testimony, or

confessions”; and (3) “statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement

7

would be available for use at a later trial.” Id. at 51-52 (alteration omitted)

(quotation marks omitted).

[¶10] In Melendez-Diaz, the Supreme Court considered the

Confrontation Clause implications of a Massachusetts statute that allowed

prosecutors to have admitted in evidence a certificate of the lab analysis

identifying the quality, quantity, and type of drugs in lieu of the live testimony

of the chemist who performed that analysis. 557 U.S. at 308-09. In that case,

the defendant was charged with distributing and trafficking in cocaine. Id. at

308. At trial, the prosecution offered three “certificates of analysis” from

forensic analysts at the state laboratory, identifying as cocaine the substance

found in the defendant’s possession during a search. Id. (quotation marks

omitted). In accordance with the statute, the court admitted the certificates as

prima facie evidence of the composition, quality, and quantity of the substance

analyzed. Id. at 308-09. The defendant was convicted of the offenses without

any live testimony as to the type and quantity of drugs seized from him. Id. at

309.

[¶11] The Supreme Court determined that the certificates—sworn to

before a notary public—were “quite plainly affidavits,” and therefore

constituted testimonial statements subject to Confrontation Clause protection.

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Id. at 308, 310. The Court therefore concluded that, as with any other forms of

testimony, “[a]bsent a showing that the analysts were unavailable to testify at

trial and that [the defendant] had a prior opportunity to cross-examine them,

[the defendant] was entitled to be confronted with the analysts at trial.” Id. at

311 (quotation marks omitted). On that basis, the Supreme Court reversed

the defendant’s conviction and remanded for a new trial. Id. at 329.

[¶12] We have not had occasion to consider, in the wake of

Melendez-Diaz, the admission of a lab certificate identifying a controlled

substance.3 We now conclude that, in terms of its testimonial nature, the

certificate at issue here is legally indistinguishable from that analyzed in

3 We have distinguished Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in several matters

in which we concluded that the evidence at issue was not testimonial. State v. Woodbury,

2011 ME 25, ¶¶ 1-3, 13 A.3d 1204 (Secretary of State certificates containing information about

driver’s license suspensions or revocations); State v. Gilman, 2010 ME 35, ¶¶ 7, 29-31, 993 A.2d 14

(same); State v. Murphy, 2010 ME 28, ¶¶ 1, 21-26, 991 A.2d 35 (same); see State v. Kimball, 2015

ME 67, ¶¶ 22-30, 117 A.3d 585 (9-1-1 recordings and statements to emergency medical personnel);

State v. Abdi, 2015 ME 23, ¶¶ 23-26, 112 A.3d 360 (housing forms); State v. Ducasse, 2010 ME 117,

¶¶ 4-5, 13, 8 A.3d 1252 (a blood-alcohol kit manufacturer’s certificate of compliance as to

manufacturing specifications); see also State v. Mercier, 2014 ME 28, ¶¶ 9-14, 87 A.3d 700 (live

testimony of a medical examiner); State v. Mitchell, 2010 ME 73, ¶¶ 13, 18, 20, 40-47, 4 A.3d 478

(same).

In another case, we considered Maine’s second notice-and-demand statute, 29-A M.R.S.

§ 2431(1), (2)(D) (2017), which allows the admission of a blood, urine, or breath test result in the

context of motor vehicle offenses unless the defendant requests a live witness at least ten days

before trial. State v. Tozier, 2015 ME 57, ¶¶ 7-21, 115 A.3d 1240. We interpreted the results of a

self-contained breath-alcohol testing apparatus known as an “Intoxilyzer” as nontestimonial

because they did not involve “laboratory work and conclusions of an analyst in lieu of the analyst’s

actual testimony”: “Unlike such a report drafted by a laboratory analyst who operates sophisticated

scientific testing equipment, . . . the only actions reflected in a certificate generated by a

self-contained breath-alcohol machine are the internal actions of the machine itself.” Id. ¶¶ 2,

21-22.

9

Melendez-Diaz. It identifies, after testing, that the substance obtained in the

controlled purchase was 136.1 milligrams of methamphetamine. It is also

signed and attested to by a State-certified chemist, who prepared the analysis

at the request of the Maine Drug Enforcement Agency. In short, it is the type

of certificate—or, more precisely, affidavit—that the Supreme Court declared

is testimonial in Melendez-Diaz. 557 U.S. at 310; see State v. Tozier, 2015 ME

57, ¶ 20, 115 A.3d 1240 (“Confrontation Clause jurisprudence is concerned

with the absence of those witnesses whose actions played a role in the

generation of test results.”). Because it is testimonial, its admission triggers

the protection of the Confrontation Clause, which requires that the attesting

person—the State chemist—must have been both unavailable and subject to

prior cross-examination by Jones. See Melendez-Diaz, 557 U.S. at 309-10.

Here, there is no suggestion in the record that the chemist was unavailable or

subject to prior cross-examination by Jones.

B. Waiver of Right of Confrontation

[¶13] That Jones has a constitutional right, as spelled out in

Melendez-Diaz, to confront the State’s chemist at trial is not the end of the

inquiry, however. As the Supreme Court and we have recognized on

numerous occasions, a defendant may waive any right, including one of

10

constitutional dimension. See, e.g., Maryland v. Shatzer, 559 U.S. 98, 104

(2010); Johnson v. Zerbst, 304 U.S. 458, 464 (1938); State v. Hill, 2014 ME 16,

¶ 5, 86 A.3d 628; State v. Ericson, 2011 ME 28, ¶ 15, 13 A.3d 777. “Waiver

occurs when a defendant voluntarily, knowingly, and intentionally

relinquishes or abandons a known right.” State v. True, 2017 ME 2, ¶ 14, 153

A.3d 106; see Shatzer, 559 U.S. at 104. Nevertheless, a waiver of a

constitutional right need not be express in the record, State v. Murphy,

2015 ME 62, ¶ 21, 124 A.3d 647, and may instead be inferred based on the

defendant’s conduct given the totality of the circumstances, Ericson, 2011 ME

28, ¶ 16, 13 A.3d 777. See Melendez-Diaz, 557 U.S. at 325-26 & n.10

(mentioning “forfeit[ure] by silence”); State v. Watson, 2006 ME 80, ¶ 27, 900

A.2d 702 (“As with the right to jury trial, the right to counsel may be waived

by a defendant’s inaction.”); State v. Caulfield, 722 N.W.2d 304, 311 (Minn.

2016) (“[C]onfrontation rights are not among those . . . that require an

affirmative waiver in writing or on the record.”). A defendant is also not

relieved from complying with “established rules of procedure and evidence

designed to assure both fairness and reliability in the ascertainment of guilt

and innocence” just because there is a constitutional right at stake. Ericson,

2011 ME 28, ¶ 17, 13 A.3d 777 (quotation marks omitted).

11

[¶14] To verify that a defendant did voluntarily, knowingly, and

intentionally relinquish a right, we review any express or implicit factual

findings regarding such waiver for clear error, and we review de novo the

legal conclusion based on those facts. Hill, 2014 ME 16, ¶ 5, 86 A.3d 628.

Although it did not phrase it as such, the court in this matter essentially

concluded that Jones waived her right to confront the State chemist when she

failed to request a live witness at least ten days before trial. Because there is

no factual dispute that Jones did not make any such request, the only issue

before us is the legal conclusion that her failure to do so constitutes a

voluntary, knowing, and intentional waiver.

[¶15] In Melendez-Diaz, the Supreme Court recognized so-called

“notice-and-demand statutes” as a means by which a defendant may waive

Confrontation Clause rights. 557 U.S. at 326. The Court characterized

notice-and-demand statutes, “[i]n their simplest form, [to] require the

prosecution to provide notice to the defendant of its intent to use an analyst’s

report as evidence at trial, after which the defendant is given a period of time

in which he may object to the admission of the evidence absent the analyst’s

appearance live at trial.” Id. The Supreme Court approved the use of such

notice-and-demand statutes, reasoning that states are “free to adopt

12

procedural rules governing objections,” such statutes maintain the burden on

the defendant to raise a timely Confrontation Clause objection, and “[t]here is

no conceivable reason” why a defendant cannot be required to exercise her

Confrontation Clause rights in advance of trial. Id. at 327 & n.12.

[¶16] The State contends that section 1112 constitutes just such a

statute, but Jones argues that the provision does not constitute the type of

notice-and-demand statute that the Supreme Court sanctioned as a

constitutional means for enforcing a defendant’s waiver of her Confrontation

Clause rights because it does not require the State to inform a defendant of its

intent to offer a certificate at trial in lieu of live testimony.

[¶17] Although the Supreme Court did not purport to sanction every

possible form of notice-and-demand statute, it did cite the notice-and-demand

statutes of Georgia, Ohio, and Texas as examples of provisions that comply

with Confrontation Clause requirements. Id. at 326, 327 n.12; see Ga. Code

Ann. § 35-3-154.1 (LEXIS through 2017 Regular Sess. of the Gen. Assemb.);

Ohio Rev. Code Ann. § 2925.51 (LEXIS through legis. passed by the 132nd Gen.

Assemb.); Tex. Code Crim. Proc. Ann. art. 38.41 (LEXIS through 2017 Regular

13

Sess. and 1st C.S., 85th Leg.). We review each of these three statutes deemed

constitutional by the Supreme Court, and we compare them to section 1112.4

[¶18] Georgia’s statute provides that the prosecutor must serve the

defendant with a copy of a lab report “prior to” trial. Ga. Code Ann.

§ 35-3-154.1(c)-(d). If the defendant objects in writing at least ten days

before trial, the court “shall require” the witness to testify in person and the

prosecution may not use the report as prima facie evidence of its contents.

Ga. Code Ann. § 35-3-154.1(e).

[¶19] Ohio’s notice-and-demand statute also provides that the

prosecution must serve the defendant with a copy of the report “prior to” trial.

Ohio Rev. Code Ann. § 2925.51(B). If the defendant serves on the prosecution

a demand for live testimony within seven days after receipt of the report, the

report may not be used as prima facie evidence of its contents. Ohio Rev. Code

Ann. § 2925.51(C).

[¶20] Similarly, Texas’s notice-and-demand statute provides that the

prosecution must file the certificate of analysis with the court and serve it on

4 The complete text of each of the three statutes is reproduced in Appendix A to this opinion.

14

the defendant at least twenty days before trial.5 Tex. Code Crim. Proc. Ann.

art. 38.41, § 4. The certificate is not admissible if the defendant files a written

objection to the use of the certificate at least ten days before trial. Tex. Code

Crim. Proc. Ann. art. 38.41, § 4.

[¶21] In terms of notice, all three statutes share the requirement that

the prosecutor provide the defendant with a copy of the certificate before

trial.6 All three statutes require the prosecution to provide notice of the

existence and contents of the report, and to serve the report on the defendant

or her counsel before trial, but none specifically requires the prosecution to

notify the defendant that it intends to use the report in lieu of live testimony

5 Texas’s notice-and-demand statute has been amended since Melendez-Diaz was issued in 2009,

but those amendments do not affect the analysis undertaken in Melendez-Diaz or in the instant

matter. See 2013 Tex. Gen. Laws 78 (West) (effective May 18, 2013).

6 Each of the statutes also contains minimum requirements for the contents of the report—e.g.,

the name of the analyst, that the laboratory is accredited, a summary of the analyst’s education and

experience, and a description of the procedures used. Ga. Code Ann. § 35-3-154.1(b) (LEXIS

through 2017 Regular Sess. of the Gen. Assemb.); Ohio Rev. Code Ann. § 2925.51(A) (LEXIS through

legis. passed by the 132nd Gen. Assemb.); Tex. Code Crim. Proc. Ann. art. 38.41, §§ 3, 5 (LEXIS

through 2017 Regular Sess. and 1st C.S., 85th Leg.). The Supreme Court gave no hint, however, that

the contents of the report itself are relevant to a Confrontation Clause analysis beyond the

determination of whether the report is testimonial. See Melendez-Diaz, 557 U.S. at 310, 326-28. In

any event, 17-A M.R.S. § 1112 shares the requirements that the certificate be signed and sworn to

by a person qualified to issue such results according to Department of Health and Human Services

certification standards, and that the analysis was conducted using “a method designed to accurately

determine the composition of the substance.” Section 1112 is therefore indistinguishable on this

basis.

15

at trial.7 Ga. Code Ann. § 35-3-154.1(c); Ohio Rev. Code Ann. § 2925.51(B);

Tex. Code Crim. Proc. Ann. art. 38.41, § 4. Further, Georgia requires service on

the defendant only “prior to” trial, even though it also requires the defendant

to demand a live witness within a certain number of days (ten days) before

trial.8 Ga. Code Ann. § 35-3-154.1(c), (e); see Ohio Rev. Code Ann.

§ 2925.51(B) (requiring service on the defendant “prior to” trial).

[¶22] Unlike the notice-and-demand statutes of Georgia, Ohio, and

Texas, section 1112 does not require the State to serve the defendant with a

copy of the certificate of analysis, but another Maine provision—

M.R.U. Crim. P. 16—does require the State to provide a copy to the defendant.

Rule 16 requires the State to provide automatic discovery to the defendant,

including “[a]ny reports or statements of experts, made in connection with the

particular case, including results of . . . scientific tests, experiments, or

comparisons.” M.R.U. Crim. P. 16(a)(2)(G). For a Class B offense such as the

7 All three comparison statutes set the timeline for service of the report according to the

proximity to trial; Georgia requires that it must be served on the defendant “prior to the first

proceeding in which the report is to be used against the defendant,” Ga. Code Ann. § 35-3-154.1(c)

(LEXIS through 2017 Regular Sess. of the Gen. Assemb.); Ohio requires that it must be served “prior

to any proceeding in which the report is to be used against the accused,” Ohio Rev. Code Ann.

§ 2925.51(B) (LEXIS through legis. passed by the 132nd Gen. Assemb.); and Texas requires that it

must be served “[n]ot later than the 20th day before the trial begins in a proceeding in which a

certificate of analysis under this article is to be introduced,” Tex. Code Crim. Proc. Ann. art. 38.41,

§ 4 (LEXIS through 2017 Regular Sess. and 1st C.S., 85th Leg.).

8 Texas requires the prosecution to serve the report on the defendant at least twenty days

before trial. Tex. Code Crim. Proc. Ann. art. 38.41, § 4.

16

one with which Jones was charged, the State must provide such materials at

the initial appearance or arraignment, or within fourteen days after that

material “comes within the possession or control of the attorney for the

State.”9 M.R.U. Crim. P. 16(b)(1), (3)-(5).

[¶23] Although it is true that section 1112 does not require the State to

notify the defendant that it intends to introduce the certificate in lieu of live

testimony, neither do the notice-and-demand statutes of Georgia, Ohio, and

Texas. Defendant’s argument that she was unaware that the State intended to

use the certificate, despite having received a copy of it in discovery, therefore

provides no support for her contention that section 1112 is facially

unconstitutional.

[¶24] Thus, section 1112, in combination with Rule 16, provides a

defendant in Maine with precisely the same notice and within at least the

same time constraints as the Georgia and Ohio statutes.10

9 Jones does not argue that the State violated the automatic discovery requirements of

M.R.U. Crim. P. 16.

10 There is no reason to distinguish section 1112 from the others we discuss based on the fact

that the notice requirement derives from rule rather than statute. In Colorado, for example, the

notice-and-demand statute contains no mention of the notice the prosecutor is to provide the

defendant regarding its use of a lab report at trial, but requires the defendant to request live

testimony at least fourteen days before trial. Colo. Rev. Stat. § 16-3-309(5) (LEXIS through 71st

Gen. Assemb.). The Colorado Supreme Court held that its statute was constitutional

notwithstanding Melendez-Diaz, reasoning that “providing the defense with a forensic lab report

through discovery is sufficient to put the defendant on notice that, absent a specific request under

[the notice-and-demand statute], the report can be introduced without live testimony.” Cropper v.

17

[¶25] In terms of demand, Georgia and Texas share the requirement

that the defendant object in writing to the admission of the report at least ten

days before trial.11 Ga. Code Ann. § 35-3-154.1(e); Tex. Code Crim. Proc. Ann.

art. 38.41, § 4. Maine’s demand provision is indistinguishable; section 1112

requires the defendant to provide at least ten days’ written notice to the

prosecution that she requests a live witness to testify regarding the analysis

results.12 17-A M.R.S. § 1112(1).

People, 251 P.3d 434, 434-37 (Colo. 2011). In Iowa as well, the notice-and-demand statute

requires that the county attorney must provide a copy of any such lab results “whether or not such

findings are to be used in evidence against the accused person,” Iowa Code Ann. § 691.4 (LEXIS

through legis. from the 2017 Regular Sess. of the 87th Gen. Assemb.), just as M.R.U. Crim. P.

16(a)(1) requires disclosure of such discovery without regard for its intended use at trial.

Similarly, in South Carolina, the admissibility of lab reports is set out entirely by rule rather than

statute. S.C. R. Crim. P. 6.

11 Ohio requires that the accused demand a live witness within seven days after receipt of the

report. Ohio Rev. Code Ann. § 2925.51(C) (LEXIS through legis. passed by the 132nd Gen. Assemb.).

12 The fact that the State identified a chemist on its witness list did not absolve Jones of her

responsibility to assert her Confrontation Clause rights in a timely fashion. See Cropper, 251 P.3d at

437-48 & nn.5-6 (“Regardless of any representations that the prosecution made that the technician

would testify, [the defendant] had notice of the presence of the report and had an adequate

opportunity to assert [the defendant’s] confrontation rights and request that the technician be

present for cross-examination.”); see also Jones v. State, No. CACR11-19, 2011 Ark. App. LEXIS 724,

at **8 (Ark. Ct. App. Nov. 9, 2011) (“Appellant cites no authority for his argument that he was

excused from the notice requirement because the analyst appeared on the prosecution’s witness

list.”). Nevertheless, to avoid the need for a defendant in every case to make a prophylactic request

for a live witness, the best practice is for the State to inform the defendant at the dispositional

conference whether it intends to call the chemist as a witness or rely on the lab certificate alone.

See M.R.U. Crim. P. 18. Further, although section 1112 contains no time frame for the State’s

obligation to provide the certificate to the defendant, Rule 16 does. The State’s failure to provide

the certificate in compliance with Rule 16 may result in a sanction for violation of the discovery rule

or, at a minimum, a continuance of trial to allow the defendant to timely request that the State

produce a witness. See M.R.U. Crim. P. 16(e); State v. Carr, 2012 ME 136, ¶ 9, 58 A.3d 1102; see also

Iowa Code Ann. § 691.4 (stating that if the county attorney does not provide a copy of the report at

least four days before trial, “such fact shall be grounds for a continuance”).

18

[¶26] We conclude that section 1112 is legally indistinguishable from

the notice-and-demand statutes that the Supreme Court in Melendez-Diaz

specifically deemed constitutional on Confrontation Clause grounds. We

therefore decline Jones’s request to declare section 1112 facially

unconstitutional on this basis.13 Jones’s failure to timely demand a live

witness pursuant to section 1112 effected a voluntary, knowing, and

intentional waiver of her known Confrontation Clause rights, and the court

13 Nor are we persuaded by the State’s argument that a defendant waives her right of

confrontation by failing to indicate that she has a “genuine intention to challenge the conclusions

contained in the report of an analyst.” Specifically, the State points out that Jones “did not provide

the trial court with an offer of proof that the drugs in questions were not methamphetamine, that

the State’s chemist was not competent, used flawed science to test the drugs, or that in some way

the live testimony of the chemist would be expected to be compromised.”

This argument rests on a misreading of Melendez-Diaz. In its opinion, the Supreme Court

expressly declined to discuss the constitutionality of notice-and-demand statutes that require a

defendant’s good cause for demanding a live witness. 557 U.S. at 327 n.12. The Supreme Court’s

discussion of the Confrontation Clause is also devoid of any mention of the defendant’s duty to

mount an actual challenge to the testimony in question. See id. at 309-11; see also State v. Laturner,

218 P.3d 23, 32-40 (Kan. 2009) (invalidating that portion of Kansas’s former notice-and-demand

statute that required the defendant to demonstrate the grounds for his objection to the admission

of a certificate in lieu of live testimony and his intent to actually cross-examine the witness at trial);

City of Reno v. Howard, 318 P.3d 1063, 1064 (Nev. 2014) (declaring that the Nevada statute’s

“substantial-and-bona-fide-dispute requirement impermissibly burdens the right to confront the

declarant”). It is the defendant’s right to cross-examine, not her actual intent to do so, that is the

crux of the Confrontation Clause. See Melendez-Diaz, 557 U.S. at 309. Furthermore, section 1112

contains no requirement that the defendant demonstrate the nature or extent of her anticipated

challenge to lab analysis results to justify her request for the live testimony of the chemist, and we

decline to impute one into the statute.

Rather than making enforcement of Confrontation Clause rights dependent on the defendant’s

intent to mount a genuine challenge to the live witness’s testimony, the Supreme Court has simply

encouraged patience—“[W]e do not cast aspersions on trial judges, who we trust will not be

antagonized by good-faith requests for analysts’ appearance at trial”—and discouraged

inefficiency—“We simply do not expect defense attorneys to believe that their clients’ interests (or

their own) are furthered by objections to analysts’ reports whose conclusions counsel have no

intention of challenging.” Id. at 328 n.13.

19

therefore did not err by allowing the State to introduce at trial the chemist’s

certificate in lieu of live testimony.

The entry is:

Judgment affirmed.

John W. Tebbetts, Esq. (orally), Presque Isle, for appellant Macie Jones

John M. Pluto, Asst. Dist. Atty. (orally), Prosecutorial District No. 8, Caribou, for

appellee State of Maine

Aroostook County Unified Criminal Docket docket number CR-2016-106

FOR CLERK REFERENCE ONLY

20

APPENDIX A

Ga. Code Ann. § 35-3-154.1

(LEXIS through 2017 Regular Sess. of the Gen. Assemb.)

§ 35-3-154.1. Admission of reports from state crime laboratory

(a) A copy of a report of the methods and findings of any examination

or analysis conducted by an employee of the state crime laboratory

or an employee of a laboratory with which the state crime

laboratory has a contract for the provision of laboratory or

scientific examination or analysis, authenticated under oath, is

prima-facie evidence in court proceedings in this state of the facts

contained therein.

(b) The report shall have the effect as if the person who performed the

analysis or examination had personally testified and shall have an

affidavit of the employee stating:

(1) That he or she is certified to perform the requisite analysis or

examination;

(2) His or her experience as a chemist or analyst and as an expert

witness testifying in court; and

(3) That he or she conducted the tests shown on the report using

procedures approved by the bureau and the report accurately

reflects his or her opinion regarding the results.

(c) The prosecuting attorney shall serve a copy on the defendant’s

attorney of record, or on the defendant if pro se, prior to the first

proceeding in which the report is to be used against the defendant.

(d) Any report under this Code section shall contain notice of the right

to demand the testimony of the person signing the report.

(e) The defendant may object in writing any time after service of the

report, but at least ten days prior to trial, to the introduction of the

21

report. If objection is made, the judge shall require the employee to

be present to testify. The state shall diligently investigate the

witness’s availability and report to the court. If the witness is not

available on a timely basis, the court shall grant a continuance.

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Ohio Rev. Code Ann. § 2925.51

(LEXIS through legis. passed by the 132nd Gen. Assemb.)

§ 2925.51 Laboratory report as evidence; requirements; violation.

(A) In any criminal prosecution for a violation of this chapter or

Chapter 3719. of the Revised Code, a laboratory report from the

bureau of criminal identification and investigation, a laboratory

operated by another law enforcement agency, or a laboratory

established by or under the authority of an institution of higher

education that has its main campus in this state and that is

accredited by the association of American universities or the north

central association of colleges and secondary schools, primarily for

the purpose of providing scientific services to law enforcement

agencies and signed by the person performing the analysis, stating

that the substance that is the basis of the alleged offense has been

weighed and analyzed and stating the findings as to the content,

weight, and identity of the substance and that it contains any

amount of a controlled substance and the number and description

of unit dosages, is prima-facie evidence of the content, identity, and

weight or the existence and number of unit dosages of the

substance. In any criminal prosecution for a violation of section

2925.041 of the Revised Code or a violation of this chapter or

Chapter 3719. of the Revised Code that is based on the possession

of chemicals sufficient to produce a compound, mixture,

preparation, or substance included in schedule I, II, III, IV, or V, a

laboratory report from the bureau or from any laboratory that is

operated or established as described in this division that is signed

by the person performing the analysis, stating that the substances

that are the basis of the alleged offense have been weighed and

analyzed and stating the findings as to the content, weight, and

22

identity of each of the substances, is prima-facie evidence of the

content, identity, and weight of the substances.

Attached to that report shall be a copy of a notarized statement by

the signer of the report giving the name of the signer and stating

that the signer is an employee of the laboratory issuing the report

and that performing the analysis is a part of the signer’s regular

duties, and giving an outline of the signer’s education, training, and

experience for performing an analysis of materials included under

this section. The signer shall attest that scientifically accepted tests

were performed with due caution, and that the evidence was

handled in accordance with established and accepted procedures

while in the custody of the laboratory.

(B) The prosecuting attorney shall serve a copy of the report on the

attorney of record for the accused, or on the accused if the accused

has no attorney, prior to any proceeding in which the report is to be

used against the accused other than at a preliminary hearing or

grand jury proceeding where the report may be used without

having been previously served upon the accused.

(C) The report shall not be prima-facie evidence of the contents,

identity, and weight or the existence and number of unit dosages of

the substance if the accused or the accused’s attorney demands the

testimony of the person signing the report, by serving the demand

upon the prosecuting attorney within seven days from the accused

or the accused’s attorney’s receipt of the report. The time may be

extended by a trial judge in the interests of justice.

(D) Any report issued for use under this section shall contain notice of

the right of the accused to demand, and the manner in which the

accused shall demand, the testimony of the person signing the

report.

(E) Any person who is accused of a violation of this chapter or of

Chapter 3719. of the Revised Code is entitled, upon written request

made to the prosecuting attorney, to have a portion of the

substance that is, or of each of the substances that are, the basis of

23

the alleged violation preserved for the benefit of independent

analysis performed by a laboratory analyst employed by the

accused person, or, if the accused is indigent, by a qualified

laboratory analyst appointed by the court. Such portion shall be a

representative sample of the entire substance that is, or of each of

the substances that are, the basis of the alleged violation and shall

be of sufficient size, in the opinion of the court, to permit the

accused’s analyst to make a thorough scientific analysis concerning

the identity of the substance or substances. The prosecuting

attorney shall provide the accused’s analyst with the sample

portion at least fourteen days prior to trial, unless the trial is to be

held in a court not of record or unless the accused person is

charged with a minor misdemeanor, in which case the prosecuting

attorney shall provide the accused’s analyst with the sample

portion at least three days prior to trial. If the prosecuting attorney

determines that such a sample portion cannot be preserved and

given to the accused’s analyst, the prosecuting attorney shall so

inform the accused person or his attorney. In such a circumstance,

the accused person is entitled, upon written request made to the

prosecuting attorney, to have the accused’s privately employed or

court appointed analyst present at an analysis of the substance that

is, or the substances that are, the basis of the alleged violation, and,

upon further written request, to receive copies of all recorded

scientific data that result from the analysis and that can be used by

an analyst in arriving at conclusions, findings, or opinions

concerning the identity of the substance or substances subject to

the analysis.

(F) In addition to the rights provided under division (E) of this section,

any person who is accused of a violation of this chapter or of

Chapter 3719. of the Revised Code that involves a bulk amount of a

controlled substance, or any multiple thereof, or who is accused of a

violation of section 2925.11 of the Revised Code, other than a minor

misdemeanor violation, that involves marihuana, is entitled, upon

written request made to the prosecuting attorney, to have a

laboratory analyst of the accused’s choice, or, if the accused is

indigent, a qualified laboratory analyst appointed by the court

present at a measurement or weighing of the substance that is the

24

basis of the alleged violation. Also, the accused person is entitled,

upon further written request, to receive copies of all recorded

scientific data that result from the measurement or weighing and

that can be used by an analyst in arriving at conclusions, findings,

or opinions concerning the weight, volume, or number of unit doses

of the substance subject to the measurement or weighing.

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Tex. Code Crim. Proc. Ann. art. 38.41

(LEXIS through 2017 Regular Sess. and 1st C.S., 85th Leg.)

Art. 38.41. Certificate of Analysis.

Sec. 1. A certificate of analysis that complies with this article is

admissible in evidence on behalf of the state or the defendant to

establish the results of a laboratory analysis of physical evidence

conducted by or for a law enforcement agency without the

necessity of the analyst personally appearing in court.

Sec. 2. This article does not limit the right of a party to summon a

witness or to introduce admissible evidence relevant to the results

of the analysis.

Sec. 3. A certificate of analysis under this article must contain the

following information certified under oath:

(1) the names of the analyst and the laboratory employing the

analyst;

(2) a statement that the laboratory employing the analyst is

accredited by a nationally recognized board or association

that accredits crime laboratories;

(3) a description of the analyst’s educational background, training,

and experience;

25

(4) a statement that the analyst’s duties of employment included

the analysis of physical evidence for one or more law

enforcement agencies;

(5) a description of the tests or procedures conducted by the

analyst;

(6) a statement that the tests or procedures used were reliable and

approved by the laboratory employing the analyst; and

(7) the results of the analysis.

Sec. 4. Not later than the 20th day before the trial begins in a

proceeding in which a certificate of analysis under this article is to

be introduced, the certificate must be filed with the clerk of the

court and a copy must be provided by fax, secure electronic mail,

hand delivery, or certified mail, return receipt requested, to the

opposing party. The certificate is not admissible under Section 1 if,

not later than the 10th day before the trial begins, the opposing

party files a written objection to the use of the certificate with the

clerk of the court and provides a copy of the objection by fax, secure

electronic mail, hand delivery, or certified mail, return receipt

requested, to the offering party.

Sec. 5. A certificate of analysis is sufficient for purposes of this article if

it uses the following form or if it otherwise substantially complies

with this article:

CERTIFICATE OF ANALYSIS

BEFORE ME, the undersigned authority, personally

appeared __________________, who being duly sworn, stated as

follows:

My name is ___________________________. I am of sound mind, over

the age of 18 years, capable of making this affidavit, and

personally acquainted with the facts stated in this affidavit.

26

I am employed by the __________________________, which was

authorized to conduct the analysis referenced in this affidavit.

Part of my duties for this laboratory involved the analysis of

physical evidence for one or more law enforcement agencies.

This laboratory is accredited by __________________________.

My educational background is as follows: (description of

educational background)

My training and experience that qualify me to perform the tests

or procedures referred to in this affidavit and determine the

results of those tests or procedures are as follows: (description

of training and experience)

I received the physical evidence listed on laboratory report no.

___________ (attached) on the __________day of _________________ ,

20___________. On the date indicated in the laboratory report, I

conducted the following tests or procedures on the physical

evidence: (description of tests and procedures)

The tests and procedures used were reliable and approved by

the laboratory. The results are as indicated on the lab report.

___________________________________

Affiant

SWORN TO AND SUBSCRIBED before me on the

___________________day of __________________, 20____________.

___________________________________

Notary Public, State of Texas