People v. McClanahan

729 N.E.2d 470, 191 Ill. 2d 127, 246 Ill. Dec. 97, 2000 Ill. LEXIS 379

• Court: Illinois Supreme Court
• Decided: April 20, 2000
• Docket: 86953
• Status: Published

Opinions

JUSTICE RATHJE

delivered the opinion of the court:

At issue in this appeal is the constitutionality of section 115 — 15 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 — 15 (West 1998)). This section allows the State, in prosecutions under the Cannabis Control Act (720 ILCS 550/1 et seq. (West 1998)) or the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1998)), to use lab reports in lieu of actual testimony as prima facie evidence of the contents of the substance at issue unless the defendant files a demand for the testimony of the witness who prepared the report. The demand must be filed within seven days of the defense’s receipt of the report.

BACKGROUND

Defendant, Donald E. McClanahan, was charged with unlawful possession of less than 15 grams of cocaine (720 ILCS 570/402(c) (West 1996)). The State filed supplemental discovery that included the state police crime lab report identifying the substance at issue as cocaine. The State also tendered the affidavit of Sandra Brown, who prepared the lab report. Eight months later, defendant filed a motion asking the State to call Sandra Brown as a witness at trial. The State objected, arguing that section 115 — 15 gave it the right to introduce the lab report into evidence without Brown’s testimony.

Section 115 — 15 provides:

“(a) In any criminal prosecution for a violation of either the Cannabis Control Act or the Illinois Controlled Substances Act, a laboratory report from the Department of State Police, Division of Forensic Services, that is signed and sworn to by the person performing an analysis and that states (1) that the substance that is the basis of the alleged violation has been weighed and analyzed, and (2) the person’s findings as to the contents, weight and identity of the substance, and (3) that it contains any amount of a controlled substance or cannabis is prima facie evidence of the contents, identity and weight of the substance. Attached to the report shall be a copy of a notarized statement by the signer of the report giving the name of the signer and stating (i) that he or she is an employee of the Department of State Police, Division of Forensic Services, (ii) the name and location of the laboratory where the analysis was performed, (iii) that performing the analysis is a part of his or her regular duties, and (iv) that the signer is qualified by education, training and experience to perform the analysis. The signer shall also allege 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 State’s Attorney shall serve a copy of the report on the attorney of record for the accused, or on the accused if he or she has no attorney, before any proceeding in which the report is to be used against the accused other than at a preliminary hearing or grand jury hearing when 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 of the substance if the accused or his or her attorney demands the testimony of the person signing the report by serving the demand upon the State’s Attorney within 7 days from the accused or his or her attorney’s receipt of the report.” 725 ILCS 5/115 — 15 (West 1998).

In his motion to compel the State to call Brown as a witness, defendant argued that the seven-day demand period was unconstitutional. The trial court denied both that motion and defendant’s subsequent motion to reconsider. At trial, a police officer testified that, during a field test, the substance at issue in this case tested positive for cocaine. The State sought to use Brown’s lab report and her accompanying affidavit to establish that the substance was in fact cocaine. The lab report and affidavit were admitted into evidence over defendant’s objection. The jury found defendant guilty, and the trial court sentenced him to three years’ imprisonment.

On appeal, defendant argued that section 115 — 15 is unconstitutional because it violates the confrontation clauses of the United States and Illinois Constitutions¹ (U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8) and because it allows defendants to unknowingly waive their constitutional confrontation rights. The appellate court disagreed and affirmed defendant’s conviction and sentence. 301 Ill. App. 3d 216.

We granted defendant’s petition for leave to appeal. Defendant’s argument in this court consists of two main points. The first focuses on the type of evidence that is admissible under the statute; the second focuses on the procedures that the statute requires a defendant to follow to secure his confrontation rights.²

ANALYSIS

A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill. 2d 542, 550 (1999).

Whether a statute is constitutional is a question of law that we review de novo. People v. Fisher, 184 Ill. 2d 441, 448 (1998).

“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, Ill L. Ed. 2d 666, 678, 110 S. Ct. 3157, 3163 (1990). 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 particularized guarantees of trustworthiness assure the reliability of the evidence. Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980).

Reliability of the Evidence

Defendant’s first argument, that the statute violates the confrontation clause, consists of three prongs: (1) the statute does not require the State to establish the unavailability of the crime lab employee before introducing the lab report; (2) the statute neither falls within a firmly rooted hearsay exception nor requires particularized guarantees of trustworthiness; and (3) the statute is not necessary to further an important public policy. We agree with defendant’s second point and thus see no need to address the other two arguments.

Defendant’s argument is based primarily on Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), in which the Supreme Court held that hearsay evidence must possess certain indicia of reliability. Roberts, 448 U.S. at 65-66, 65 L. Ed. 2d at 607-08, 100 S. Ct. at 2538-39.³ For the third prong of his argument, defendant relies on Craig, 497 U.S. at 850, Ill L. Ed. 2d at 682, 110 S. Ct. at 3166, in which the Supreme Court held that a defendant’s right to confront the witnesses against him may be denied only where that denial is necessary to further an important public policy. The State does not address these arguments on their merits, instead choosing to argue that section 115 — 15 does not create a confrontation clause problem because subsection (c) of the statute allows defendants to preserve their confrontation rights.

We agree with defendant. First, the evidence admissible pursuant to section 115 — 15 does not fall within a firmly rooted hearsay exception. In the trial court, the State argued that section 115 — 15 lab reports fall within the business records exception to the hearsay rule. This is unquestionably false. An exception to the business records hearsay exception are those writings or records that have “been made by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind.” 725 ILCS 5/115 — 5(c)(2) (West 1998); People v. Smith, 141 Ill. 2d 40, 72 (1990). The lab reports covered by section 115 — 15 are prepared during the course of criminal investigations and are requested by the State in anticipation of prosecutions.

Second, section 115 — 15 does not contain particularized guarantees of trustworthiness. Essentially, the preparer of the report merely has to attest that he or she is qualified to conduct the test and that he or she used due caution and acted within established procedures. Indeed, in this case, the only information as to Sandra Brown’s qualifications is her own statement in the affidavit that her “education, training and experience qualify [her] to perform the analyses conducted in this manner.” The statute does not require the State to provide any information as to how the tests are conducted, what the accepted scientific procedures are, and what qualifications and training the crime lab employees must have. In other words, after the defendant has been arrested, the entity that seeks to prosecute him sends the evidence to its own lab for testing. The evidence is then admissible on nothing more than the vague assurances of the prosecuting authority’s own employee that proper testing was done and that the employee is qualified to do the testing. The State does not argue, nor do we discern, that the statute contains particularized guarantees of trustworthiness.

In sum, we agree with defendant that the lab reports admissible pursuant to section 115 — 15 neither contain particularized guarantees of trustworthiness nor fall within a firmly established hearsay exception. We turn next to the question of whether any confrontation clause problems are avoided by subsection 115 — 15(c), which allows defendants to demand the testimony of the report’s preparer within seven days of a defendant’s receipt of the report.

Demand Provision

Defendant’s argument with respect to the demand provision of section 115 — 15(c) consists of two interrelated parts. Defendant argues that section 115 — 15(c) impermissibly requires defendants to take an affirmative step to secure their confrontation rights or be deemed to have waived them, and that it fails to contain sufficient procedural safeguards to ensure that any such waiver is knowing and voluntary. We agree.

The State does not cite any relevant authority to contravene defendant’s argument that defendants cannot be required to take an affirmative step to secure their constitutional confrontation rights. Rather, the State endorses the rationale given by the appellate court in upholding the statute on this basis. The appellate court reasoned that “an accused has a right to put on relevant evidence favorable to him, but he can lose that right by failure to give reasonable required discovery in this regard. [Citations.] By the same logic, a defendant’s right of confrontation can be limited by a requirement to take reasonable action such as that required here.” 301 Ill. App. 3d at 221-22. The United States Supreme Court disagrees.

In Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988), a case not cited by the appellate court, the Supreme Court considered whether a trial judge’s discovery sanction violated the defendant’s constitutional right to obtain the testimony of favorable witnesses. In that case, the trial court sanctioned the defense by refusing to allow a defense witness to testify because the defense did not disclose that witness in a pretrial discovery request. The court held that such sanctions were not absolutely prohibited by the compulsory process clause of the sixth amendment (U.S. Const., amend. VI). As part of its discussion, the court explained the difference between compulsory process and other rights guaranteed by the sixth amendment:

“There is a significant difference between the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment — its availability is dependent entirely on the defendant’s initiative. Most other Sixth Amendment rights arise automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case. While those rights shield the defendant from potential prosecutorial abuses, the right to compel the presence and present the testimony of witnesses provides the defendant with a sword that may be employed to rebut the prosecution’s case. The decision whether to employ it in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.” (Emphasis added.) Taylor, 484 U.S. at 410, 98 L. Ed. 2d at 811, 108 S. Ct. at 653-54.

The court elaborated on this principle in a footnote:

“As one commentator has noted:

‘The defendant’s rights to be informed of the charges against him, to receive a speedy and public trial, to be tried by a jury, to be assisted by counsel, and to be confronted with adverse witnesses are designed to restrain the prosecution by regulating the procedures by which it presents its case against the accused. They apply in every case, whether or not the defendant seeks to rebut the case against him or to present a case of his own. Compulsory process, on the other hand, comes into play at the close of the prosecution’s case. It operates exclusively at the defendant’s initiative and provides him with affirmative aid in presenting his defense.’ ” (Emphasis added.) Taylor, 484 U.S. at 410 n.14, 98 L. Ed. 2d at 811 n.14, 108 S. Ct. at 653 n.14, quoting P. Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 74 (1974).

Thus, contrary to the assertions of the State and the appellate court, the “same logic” that allows a defendant to lose his right to present favorable evidence if he fails to comply with discovery does not allow a state to require a defendant to take affirmative steps to invoke his constitutional right to be confronted with the witnesses against him. The right of a defendant to be confronted with the witnesses against him is guaranteed by the Constitution and arises automatically at the initiation of the adversary process. Taylor, 484 U.S. at 410, 98 L. Ed. 2d at 811, 108 S. Ct. at 653. Subsection (c) of section 115 — 15 impermissibly requires the defendant to take affirmative action to secure a right that he has already been constitutionally guaranteed or be deemed to have waived that right. We are unaware of any authority that permits the legislature to make a defendant’s confrontation rights contingent upon action by the defendant, and the State has not argued that such authority exists.

As stated, if a defendant does not take the procedural step required by subsection (c), he is deemed to have waived a fundamental constitutional right. Defendant argues that any such waiver must be knowing and voluntary, and that subsection (c) lacks sufficient procedural safeguards to ensure that any waiver of the right of confrontation is knowing and voluntary. We agree.

“Waiver of a constitutional right is valid only if it is clearly established that there was ‘an intentional relinquishment or abandonment of a known right ***.’ ” People v. Johnson, 75 Ill. 2d 180, 187 (1979), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938). Such waivers must not only be voluntary, but must be “ ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Johnson, 75 Ill. 2d at 187, quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469 (1970). This principle has been specifically applied to a defendant’s confrontation rights. See Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 279-80, 89 S. Ct. 1709, 1712 (1969); Barber v. Page, 390 U.S. 719, 725, 20 L. Ed. 2d 255, 260, 88 S. Ct. 1318, 1322 (1968); Brookhart v. Jams, 384 U.S. 1, 3-4, 16 L. Ed. 2d 314, 317, 86 S. Ct. 1245, 1246 (1966).

If a defendant fails to take the procedural step required by section 115 — 15(c), he has waived his right to confront and cross-examine the preparer of the report. The statute does not guarantee that this waiver is a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Rather, this waiver automatically occurs if a defendant does not respond within seven days of being served with a lab report. In the absence of this statute, the State would have to secure a knowing waiver of the confrontation right by acquiring a defendant’s stipulation to allow the lab report into evidence without the testimony of the report’s preparer. Unlike section 115— 15, these stipulations properly require a defendant to make a voluntary, knowing, and intelligent decision whether he wishes to waive his right to confront the preparer of the report.

The State argues that a defendant who fails to comply with the statutory deadline has not lost his confrontation rights because he can always subpoena the preparer of the report and cross-examine him as a hostile witness. We disagree. The United States and Illinois Constitutions guarantee a defendant the right “to be confronted with the witnesses against him.” U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The wording of these provisions is significant. They do not say that the accused has a right to confront the witnesses against him; they say that the accused has a right to he confronted with the witnesses against him. This is a mandatory constitutional obligation of the prosecuting authority. It arises automatically at the inception of the adversary process, and no action of the defendant is necessary to activate this constitutional guarantee in his case. Taylor, 484 U.S. at 410, 98 L. Ed. 2d at 811, 108 S. Ct. at 653.

Accepting the State’s argument — that a defendant does not lose his confrontation right if a defendant can still subpoena the witnesses against him — would necessarily mean that there would be no constitutional problem with allowing the State to introduce all of its evidence by affidavit as long as a defendant is allowed to bring the prosecution’s witnesses into court himself.⁴ Trial by affidavit is the primary evil that the confrontation clause was designed to prevent:

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43, 39 L. Ed. 409, 411, 15 S. Ct. 337, 339 (1895).

We emphatically reject any notion that the State’s constitutional obligation to confront the accused with the witnesses against him can be satisfied by allowing the accused to bring the State’s witnesses into court himself and cross-examine them as part of his defense.

Having determined that defendant’s constitutional confrontation rights were denied when the court refused his request to compel the State to produce the testimony of the preparer of the lab report, we must next determine whether defendant’s conviction should be reversed. Confrontation errors do not automatically warrant reversal. People v. Johnson, 116 Ill. 2d 13, 28 (1987). However, before a constitutional error can be held to be harmless, the reviewing court must be able to declare beyond a reasonable doubt that the error did not contribute to the finding of guilt. People v. Smith, 38 Ill. 2d 13, 15 (1967). The burden of proof is on the State to show beyond a reasonable doubt that the constitutional error did not affect the outcome of the proceeding. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 828 (1967); People v. Simms, 121 Ill. 2d 259, 276 (1988).

Here, the State has confined its argument to asserting that the statute is constitutional. The State does not argue that, assuming that we find the statute unconstitutional, any error in the admission of the hearsay report was harmless. Accordingly, the State has failed to satisfy its burden of showing beyond a reasonable doubt that the error did not contribute to the guilty verdict. We therefore reverse defendant’s conviction and sentence and remand the cause for a new trial.

CONCLUSION

Section 115 — 15 is unconstitutional under the confrontation clauses of the United States and Illinois Constitutions. This statute impermissibly requires a defendant to take a procedural step to secure his confrontation rights or be deemed to have waived them, and does not require that the waiver of this fundamental constitutional right be a knowing, intelligent, and voluntary act. The statute cannot withstand constitutional scrutiny, and the appellate and circuit courts erred in rejecting defendant’s constitutional challenge. Because the State did not establish that the constitutional error was harmless beyond a reasonable doubt, defendant’s conviction and sentence must be reversed, and the cause must be remanded for a new trial.

The judgments of the appellate and circuit courts are reversed, and the cause is remanded for further proceedings.

Judgments reversed; cause remanded.

JUSTICE MILLER took no part in the consideration or decision of this case.

1 In 1994, the confrontation clause of the Illinois Constitution was amended to conform with the language of the confrontation clause of the United States Constitution. See People v. Dean, 175 Ill. 2d 244, 254 (1997). Defendant does not argue that he is entitled to greater protection under the Illinois Constitution, and we will apply the same analysis to both.

2 Defendant does not contest the sufficiency of the evidence supporting his conviction. Rather, he argues solely that he should be given a new trial because the lab report and affidavit were introduced into evidence in violation of the confrontation clause.

3 The Supreme Court later limited the unavailability requirement of Roberts to those situations in which the hearsay statements were made in the course of a prior judicial proceeding. White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992).

4 This concern is not merely theoretical. During the pendency of this appeal, the legislature broadened the scope of section 115 — 15 by amending it to include blood and urine testing in prosecutions for reckless homicide and driving under the influence. See Pub. Act 91 — 563, eff. January 1, 2000 (amending 725 ILCS 5/115 — 15 (West 1998)).