Raye Lynn Harrison v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

RAYE LYNN HARRISON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-111

MARCH 3, 2004

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[NO. CR 202-58B]

HONORABLE FLOYD G. ROGERS,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Raye Lynn Harrison appeals her conviction for possession of cocaine with intent to deliver after a jury trial in Crawford County Circuit Court. As her sole point on appeal, appellant argues that the trial court denied her constitutional right to confront a witness against her, specifically the Arkansas State Crime Laboratory chemist who performed tests on the substance alleged to be cocaine. We disagree with her argument and affirm.

To give some context to the argument, we explain the relevant testimony and colloquy at trial. A state trooper testified that while patrolling along Interstate 40 on January 23, 2002, he pulled over a vehicle driven by appellant for following too close and unsafe lane change. After obtaining consent to search the vehicle, he recovered six packages containing over ten pounds of cocaine. As the trooper testified about the drugs, the prosecutor sought to admit the notarized state crime lab report signed by forensic chemist Traci Holloway indicating what the six packages contained, their weights, and the percentage of pure cocaine in each package.

Defense counsel objected on the basis that this was inadmissible hearsay and that to admit this would violate the defendant's Sixth Amendment right to confront the chemist who tested the contents of the packages. When both attorneys were brought to the bench, defense counsel admitted that he had been given a list of eight potential witnesses by the State, including Traci Holloway of the state crime lab.1 Defense counsel admitted that he did not give the statutorily required ten-day notice to the State to bring the chemist to trial for confrontation purposes, as set forth in Ark. Code Ann. § 12-12-313 (Repl. 1999). Defense counsel explained that because the State's list in response to his discovery request was for "potential" witnesses, he had no way of knowing who would actually be called, excusing him from the ten-day notice requirement. The trial judge disagreed, admitting the lab report over objection. This appeal resulted. We affirm and explain our reasoning as follows.

The Sixth Amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002). The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Id.

Arkansas Code Annotated section 12-12-313 (Repl. 1999) provides that records and reports of the State Crime Laboratory are to be received as competent evidence when duly attested to by the lab personnel who performed the analysis, or by certain designated officials of the laboratory. The statute provides that the defendant shall give at least ten (10) days notice prior to the proceedings if he wants the person who performed the analysis to be present for cross-examination. If he does not give such notice, the right of confrontation is waived. See Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). The purpose of the statute is to remove reports from exclusion under the hearsay rule. Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992).

Appellant recognizes the general rule that a defendant who fails to give timely notice waives his statutory right to confront the person who performed the analysis and that this is a generally reasonable rule. See Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). Appellant seizes on the exception that arises when the State has caused the defendant to be unable to comply with the statute's ten-day notice prerequisite. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996); Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993). There can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply. Id. The waiver of the right of confrontation, applied when the required notice is not given, necessarily contemplates that the defendant knew or should have known prior to trial that the State intended to introduce the lab report. Lockhart v. State, supra. Appellant's argument is that she was prevented from knowing who the State would definitely call as witnesses, and therefore, she had no way to know whom to notify the State to bring to trial.

We deem Lockhart v. State, supra, to be instructive on this issue. In Lockhart, the supreme court upheld the trial court's admission of a crime lab report where Lockhart indisputably knew six days prior to trial that the State intended to use the crime lab report, but Lockhart's counsel consciously chose not to ask the State to have the analyst present at trial and instead relied on the ten-day notice rule to his client's detriment. Lockhart offered no other suggestion of prejudice except the analyst's absence at trial and Lockhart's corresponding loss of his right to cross-examine. The supreme court held that Lockhart may have been afforded this right if he had only informed the State of his request, and further that he failed to show how he was harmed with the absence of the chemical analyst.

In contrast, the case of Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992), illustrates an instance in which the defense will be relieved of the ten-day notice requirement. There, the State never intended to introduce a crime lab report until defendant Hendrix testified on the third day of trial. Because Hendrix denied having used or dealt in drugs, the State called an officer to testify that he had found Hendrix in possession of cocaine four months earlier and obtained a crime lab report corroborating that the substance Hendrix possessed was cocaine. This was a separate charge than that for which he was being tried. Hendrix objected to the introduction of the analyst's report, but the State argued Hendrix had failed to make a pretrial demand for the analyst to be present at the proceeding, waiving his right to cross-examine the analyst. Our court held that Hendrix had no prior knowledge of the intended use of the report, and therefore, the waiver rule did not apply in that instance.

In the instant appeal, Harrison's counsel had been given a potential witness list in response to his discovery request; the response was filed twenty-two days prior to trial; the State revealed that it intended to introduce the crime lab report; and the State revealed that it had as a potential witness one person from the state crime lab. We deem counsel's assertion, that the State prevented appellant Harrison's counsel from complying with the statutory notice requirement, to be incorrect.

Appellant adds to her argument on appeal by stating that she did not have any notice that the State intended to use the report, bolstering her lack of notice claim. This expanded argument is not preserved for appellate review. Appellants may not raise arguments on appeal that were not first brought to the attention of the trial court. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). It would be inherently unfair to reverse the trial judge on a matter of which he was never properly apprised. See also Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). Notwithstanding the procedural bar, we note that the State specifically provided in responses to discovery that it intended to introduce the crime lab report, among other evidence.

Affirmed.

Griffen and Neal, JJ., agree.

1 The potential witness list, filed of record twenty-two days prior to trial, included four municipal police officers, two state troopers, one state highway policeman, and the chemist. The State also provided in discovery that it intended to use a crime lab report as evidence in this trial.