RICHARD BENNETT v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RICHARD BENNETT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D21-2925

[November 30, 2022]

Appeal from the County Court for the Fifteenth Judicial Circuit, Palm

Beach County; Robert Panse, Judge; L.T. Case No. 50-2020-CT-009632-

AXXX-MB.

Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessica L.

Underwood, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

Richard Bennett appeals an adjudication of guilt for misdemeanor

driving under the influence of controlled substances. He argues, among

other issues, that the trial court violated his Sixth Amendment

Confrontation Clause right by admitting his urinalysis toxicology report

where the author of the report did not testify at trial. We agree that this

was error, but we must affirm because the issue was not preserved for

review. We nevertheless write to impress that, under most circumstances,

such forensic reports are inadmissible without the author’s testimony. As

to all other issues raised, we affirm without discussion.

On the night of his arrest, Bennett’s breath test results were negative

for alcohol. He consented to a urine test, and his toxicology report revealed

the presence of controlled substances.

Dr. Xiaoqin Shan, a senior forensic scientist with the Palm Beach

County Sheriff’s Office, testified for the state at trial. Dr. Shan explained

the standard operating procedures for the crime lab for testing urine

toxicology, which include the use of several instruments to confirm the

presence of drugs.

Dr. Shan explained that two toxicologists are involved in each

toxicology report that is prepared. The first toxicologist takes an inventory

of the evidence, ensures it is properly sealed and labeled, performs

screening tests to see what classes or kinds of drugs are present in the

specimen, compiles the analytical data, makes a list of the findings, and

prepares a toxicology report. The second toxicologist, called the reviewer,

reviews the entire toxicology file that was generated by the first

toxicologist, ensures that all quality control procedures and standard

operating procedures were followed and all quality control criteria are met,

and ensures that all the conclusions and the results of the report reflect

the analysis results. If no errors are found, the report is issued.

In this case, Russell Miller, a senior forensic scientist, acted as the first

toxicologist who performed the testing and prepared the report, and Dr.

Shan acted as the reviewer. Miller signed the toxicology report that listed

the controlled substances detected in the sample. Dr. Shan signed a “TX

Toxicology Review Form” attached to the report. As of the time of trial,

Miller was no longer a senior forensic scientist with PBSO, although the

record does not reflect why. Dr. Shan confirmed that, with respect to the

report of Bennett’s toxicology testing, she ensured all quality control

procedures were followed, reviewed all of the data, and reached the same

conclusions which Miller documented in the report. When asked if she

authored the report, Dr. Shan stated, “I reviewed the report and therefore

I’m part of the authorizing of the report,” but she acknowledged that she

did not physically sign the same page as Miller.

Bennett objected to the admission of the toxicology report on the basis

of hearsay, explaining that it was authored by a different toxicologist who

did not testify. The trial court overruled the objections based on Dr. Shan’s

review, analysis, and conclusions.

The jury found Bennett guilty.

On appeal, Bennett challenges the admission of the toxicology report,

which he contends was testimonial hearsay. He argues that his Sixth

Amendment right to confrontation was violated when the trial court

allowed the admission of the report through the testimony of Dr. Shan,

when Miller, who did not testify at trial, conducted the tests, analyzed the

data, and authored the actual toxicology report.

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“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 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.” Brown v.

State, 69 So. 3d 316, 318 (Fla. 4th DCA 2011).

The class of testimonial statements covered by the Confrontation

Clause was initially described by the Supreme Court as follows:

Various formulations of this core class of testimonial

statements exist: ex parte in-court testimony or its functional

equivalent—that is, material 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; extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits,

depositions, prior testimony, or confessions; statements that

were made under circumstances which would lead an

objective witness reasonably to believe that the statement

would be available for use at a later trial . . . .

Crawford, 541 U.S. at 51-52 (alteration in original) (citations and

quotation marks omitted). The Court later clarified:

Statements are nontestimonial when made in the course of

police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate

that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006).

More specifically, courts have found that forensic lab reports can

constitute testimonial hearsay: “[L]ab 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.” State v. Johnson, 982 So. 2d 672, 680 (Fla.

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2008) (trial court erred by admitting lab report establishing illegal 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 conclusion has been applied

in cases involving various types of forensic reports. See, e.g., Bullcoming

v. New Mexico, 564 U.S. 647, 665 (2011) (“report of blood alcohol analysis”

following test of defendant’s drawn blood was testimonial); State v. Belvin,

986 So. 2d 516, 522 (Fla. 2008) (“[a] breath test affidavit fits squarely

within the definition of ‘testimonial’”).

Where the reports are testimonial, their admission violates the Sixth

Amendment if the preparer is unavailable and the defendant lacked a prior

opportunity to cross-examine the preparer. See, e.g., Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 329 (2009) (reversing where trial court

admitted three affidavits of non-testifying analysts attesting that

substances were cocaine); Belvin, 986 So. 2d at 526 (trial court erred by

admitting breath test affidavit without the affiant-technician testifying at

trial, where state established affiant was unavailable but defendant did

not have a prior opportunity to cross-examine her).

The toxicology report at issue in the instant case constitutes a

testimonial statement. It was prepared for the prosecution, in the absence

of emergent circumstances, is accusatory, tends to prove a material

element of the crime (impairment), and is a “pretrial statement[] that [the]

declarant[] would reasonably expect to be used prosecutorially.” See

Crawford, 541 U.S. at 51. Consequently, Bennett had a right to confront

the person who prepared it. The parties do not dispute that Bennett did

not have a meaningful opportunity to cross-examine Miller or that the

state did not establish Miller’s unavailability.

The state argues that the Confrontation Clause was not implicated

because Shan was one of two “analysts” or “authors” who prepared the

report, she engaged in an extensive peer review process that involved

reviewing all the data and adopting the conclusions as her own, and

Bennett was able to meaningfully cross-examine her at trial.

The Supreme Court rejected a similar, though not identical, argument

under similar facts in Bullcoming. There, in the defendant’s trial for driving

while intoxicated, the state introduced a forensic lab report certifying that

the defendant’s blood alcohol concentration was well above the legal limit.

564 U.S. at 651. The state did not call the certifying analyst, Caylor, but

rather called “another analyst [Razatos] who was familiar with the

laboratory’s testing procedures, but had neither participated in nor

observed the test on Bullcoming’s blood sample.” Id. The Supreme Court

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determined that this other analyst’s testimony did not satisfy the Sixth

Amendment:

Recognizing that admission of the blood-alcohol analysis

depended on “live, in-court testimony [by] a qualified analyst,”

147 N.M., at 496, 226 P.3d, at 10, the New Mexico Supreme

Court believed that Razatos could substitute for Caylor

because Razatos “qualified as an expert witness with respect

to the gas chromatograph machine and the SLD’s laboratory

procedures,” id., at 495, 226 P.3d, at 9. But surrogate

testimony of the kind Razatos was equipped to give could not

convey what Caylor knew or observed about the events his

certification concerned, i.e., the particular test and testing

process he employed. Nor could such surrogate testimony

expose any lapses or lies on the certifying analyst’s part.

Significant here, Razatos had no knowledge of the reason why

Caylor had been placed on unpaid leave. With Caylor on the

stand, Bullcoming’s counsel could have asked questions

designed to reveal whether incompetence, evasiveness, or

dishonesty accounted for Caylor’s removal from his

workstation. Notable in this regard, the State never asserted

that Caylor was “unavailable”; the prosecution conveyed only

that Caylor was on uncompensated leave. Nor did the State

assert that Razatos had any “independent opinion”

concerning Bullcoming’s BAC. . . . In this light, Caylor’s live

testimony could hardly be typed “a hollow formality[.]”

Id. at 661-62 (footnotes omitted) (first alteration in original); see also

Johnson, 982 So. 2d at 673 (trial court erred by admitting lab test

confirming substances possessed were controlled through testimony of

tester’s supervisor). The Court noted, “[T]he analysts who write reports

that the prosecution introduces must be made available for confrontation

even if they possess ‘the scientific acumen of Mme. Curie and the veracity

of Mother Teresa.’” Bullcoming, 564 U.S. at 661 (quoting Melendez–Diaz,

557 U.S. at 319-20 n.6).

However, subsequent cases established that all is not lost for lab

reports prepared by an analyst no longer employed by the state. Following

Bullcoming, a plurality of the Supreme Court determined in Williams v.

Illinois, 567 U.S. 50, 57-58 (2012), that testimony concerning a forensic

report may be admissible through an expert who did not prepare the

report. The Florida Supreme Court summarized Williams as follows:

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In Williams, a plurality of the Supreme Court concluded

that an expert witness could offer an opinion about a forensic

report without ultimately testifying to the underlying truth of

that report. 132 S.Ct. at 2227–28. The report itself was

prepared by a nontestifying witness, but was not admitted. Id.

The plurality, written by Justice Alito and joined by Chief

Justice Roberts and Justices Kennedy and Breyer, further

held that the report itself would not have violated the

Confrontation Clause, even if it had been admitted. Id. at

2242. The plurality concluded that the report was not

testimonial because it was generated at a time when a

dangerous, unknown rapist was at large. Id. at 2243-44

(citing Michigan v. Bryant, 562 U.S. 344, 359–62, 131 S.Ct.

1143, 179 L.Ed.2d 93 (2011)). Justice Thomas concurred in

the judgment on the basis that the evidence was admissible

“solely because [the report] lacked the requisite ‘formality and

solemnity’ to be considered ‘testimonial’ for the purposes of

the Confrontation Clause.” Id. at 2255 (Thomas, J.,

concurring in the judgment) (citing Bryant, 562 U.S. at 361,

131 S.Ct. 1143).

Calloway v. State, 210 So. 3d 1160, 1194 (Fla. 2017) (footnote omitted).

Similarly, in Smith v. State, 28 So. 3d 838, 853-55 (Fla. 2009), the

Florida Supreme Court rejected an argument that the person who

conducted a DNA test had to testify in order to avoid a Sixth Amendment

Confrontation Clause violation. There, non-testifying biologists performed

the DNA test, but the state presented the testimony of “the FBI team

supervisor, a forensic DNA examiner who interpreted the data, formulated

the conclusions, and prepared the official report.” Id. at 853. The Florida

Supreme Court emphasized the supervisor’s testimony that she “draw[s]

all the interpretations and all the conclusions.” Id. (emphasis in original);

see also United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“the

Confrontation Clause does not forbid the use of raw data produced by

scientific instruments, though the interpretation of those data may be

testimonial” (emphasis in original)); United States v. Washington, 498 F.3d

225, 232 (4th Cir. 2007) (trial court did not err by admitting testimony of

lab director who did not perform test on blood sample but rather relied on

raw data generated by machines after lab technicians subjected sample to

testing, and explaining that “raw data printed out by the machines are not

testimonial hearsay statements”). The court distinguished Johnson and

Belvin, stating that “in each of these cases, the person who prepared the

report of the relevant results did not testify.” Smith, 28 So. 3d at 854

(emphasis omitted).

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In Calloway, 210 So. 3d at 1195, the Florida Supreme Court applied

Bullcoming, Williams, and Smith to determine that Calloway’s

confrontation rights were not violated where one medical examiner (“ME”)

performed the autopsy, but a surrogate ME testified at trial. The Calloway

court reasoned that the surrogate ME’s testimony did not violate the

Confrontation Clause where the surrogate ME was available to testify and

was subject to cross-examination, the autopsy reports of the original ME

were not admitted into evidence, the surrogate ME “clearly explained to

the jury that his independent opinion was derived from the photographs

taken by investigators at the scene and from [the original ME]’s autopsy

reports,” and the surrogate ME testified that he drew his own independent

conclusions. Id.

With this precedent in mind, we turn to the facts at hand. We are

compelled to reject the state’s argument that Dr. Shan’s testimony was

sufficient to avoid a violation of the Sixth Amendment. We recognize that

the evidence pertaining to Shan’s “peer review” and adoption of

conclusions tend to support an argument that Dr. Shan had an

independent opinion. Per Williams, Smith, and Calloway, and assuming

foundational requirements were met, it would have been permissible for

Dr. Shan to testify to conclusions she reached utilizing raw data obtained

in Miller’s tests. But Dr. Shan’s conclusions do not justify the admission

of the testimonial hearsay toxicology report authored by Miller, which is a

critical distinction between this case and Calloway. As in Bullcoming, Dr.

Shan’s testimony did not establish why Miller was no longer employed with

the lab, and her testimony could not expose any lapses or lies on Miller’s

part. Thus, Miller’s report was erroneously admitted.

Nevertheless, we affirm because the issue was not preserved, and

Bennett does not raise fundamental error. “[F]or an argument to be

cognizable on appeal, it must 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.

Despite the close relationship between the exclusion of hearsay and the

right to confront witnesses, a “hearsay” objection does not preserve an

argument that a Sixth Amendment confrontation right has been violated:

The right of confrontation guaranteed by the Sixth

Amendment “differs from the kind of protection that is

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afforded by state evidence rules governing the admission of

hearsay.” Lopez v. State, 888 So. 2d 693, 697 (Fla. 1st DCA

2004). An objection specifically based on Crawford serves to

focus the trial court’s attention on the salient inquiry required

by that decision, i.e., whether the evidence is “testimonial,”

whether the witness is “unavailable,” and whether there was

a “prior opportunity for cross-examination.” Crawford, 541

U.S. at 68, 124 S. Ct. 1354.

Mencos v. State, 909 So. 2d 349, 351 (Fla. 4th DCA 2005); see also Perry

v. State, 927 So. 2d 228, 228 (Fla. 1st DCA 2006) (“A simple ‘hearsay’

objection fails to preserve the argument that one’s Sixth Amendment

confrontation right has been violated.”).

At trial, Bennett objected on the basis of “hearsay,” asserting that the

report was drafted by someone “no longer with the office” who “wasn’t

called to testify today,” and that Dr. Shan did not actually test the urine.

His objection did not mention the Sixth Amendment, the Confrontation

Clause, or Crawford or its progeny, or whether the evidence was

testimonial, the witness was unavailable, or there was a prior opportunity

for cross-examination. 1 Thus, Bennett failed to call the trial court’s

attention to the salient inquiry. If he had, the state may have been able to

present its case based on Dr. Shan’s analysis of the raw data and without

admitting the toxicology report. But, the issue was not preserved for

review, and we affirm.

Affirmed.

1 We distinguish the instant case from Evans v. State, 838 So. 2d 1090, 1097

(Fla. 2002). There, the defendant raised a Sixth Amendment confrontation right

argument with respect to presentence investigation reports admitted at the

penalty phase of his trial, at which a sentence of death or life imprisonment would

be imposed. The Florida Supreme Court rejected the state’s argument that the

issue was not preserved, stating, “Although Evans’ counsel did not specifically

assert a Sixth Amendment challenge, the hearsay objection raised is closely

related to the right of confrontation.” Id. at 1097 n.5. On the merits, the court

determined that the reports were properly admitted pursuant to section

921.141(1), Florida Statutes (1999), which permitted such evidence in the penalty

phase for capital felonies, “regardless of its admissibility under the exclusionary

rules of evidence, provided the defendant is accorded a fair opportunity to rebut

any hearsay statements,” and because the defendant had a fair opportunity to

rebut the reports. Evans, 838 So. 2d at 1097.

Evans was decided prior to Crawford, and, consequently, the salient inquiry in

Evans did not involve the elements that are now at issue.

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LEVINE and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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