Anthony Levell Brown v. State of Arkansas

ar03-661

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR03-661

October 6, 2004

ANTHONY LEVELL BROWN

APPEAL FROM JEFFERSON COUNTY

APPELLANT CIRCUIT COURT

[NO. CR97-612-2]

V.

HONORABLE JOHN W. CONE,

STATE OF ARKANSAS SPECIAL JUDGE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Appellant Anthony Levell Brown appeals from the revocation of his probation, for which he was sentenced by the trial court to five years' imprisonment. On appeal, Brown argues that the trial court erred when it allowed into evidence crime laboratory reports without the presence of the witnesses who performed the analysis, after he had given notice pursuant to Ark. Code Ann. § 12-12-313 (Repl. 2003). We affirm.

On August 18, 1998, Brown pleaded guilty to committing a terroristic act and was sentenced to five years' probation. A condition of his probation was that he obey all federal and state laws, local ordinances, and court orders. On October 16, 2002, the State filed a petition to revoke his probation, alleging that he had violated its conditions by being charged with possessing cocaine and marijuana with intent to deliver, possessing drug paraphernalia with intent to manufacture, simultaneously possessing drugs and firearms, and possessing a firearm.

Prior to the revocation hearing, on January 31, 2003, Brown filed a formal notice that he intended to preserve his right to cross-examine any witnesses that might submit reports regarding evidence in the case. Brown specifically stated that he wished to preserve his rights under Ark. Code Ann. § 12-12-313(b) and any other enactment of law requiring a notice in order to preserve the rights to confront and cross-examine witnesses.

The revocation hearing was held on February 10, 2002. At the hearing, Special Agent David Chastain with the Arkansas State Police testified that on September 4, 2002, he and other officers, including Lieutenant John McNeil, were conducting surveillance at a certain residence in Pine Bluff, Arkansas, when a vehicle driven by Brown and with a passenger, Horace Hudson, pulled in the driveway. Chastain testified that when Brown and Hudson exited the vehicle, the police officers approached them, identifying themselves as police and yelling for the suspects to get down on the ground. According to Chastain, Brown ran a short distance to the door of the residence and then got down on the ground. Chastain stated that both suspects were carrying bags, which they threw to the ground. When the blue Crown Royal bag that Brown had been carrying was searched, $11,482 was found inside, while his passenger's bag contained $33,428. Chastain further testified that a search warrant for the residence was obtained and that large amounts of cocaine and marijuana were found, in addition to Pyrex glassware, baking soda, and sandwich bags, which he stated were commonly used in the manufacture and distribution of controlled substances. Chastain also testified that other items of paraphernalia were found, along with several firearms and a large sum of cash.

Prior to the start of trial, as well as when the State sought to introduce two reports from the State Crime Laboratory through the testimony of Chastain and McNeil, Brown objected, arguing that the introduction of this evidence without the presence of the witnesses from the crime laboratory who performed the analysis violated his right to confront and cross-examine these adverse witnesses. Brown argued that he had the right to confront witnesses against him during a revocation proceeding under Ark. Code Ann. § 5-4-310(c) (Repl. 1997), unless the trial court specifically finds good cause for not allowing the confrontation, and also that he had given the statutorily required notice under § 12-12-313 of his intention to cross-examine any witness from the State Crime Laboratory who might submit a report regarding evidence in the case. The State responded that it was standard practice during revocation proceedings to accept notarized copies of crime lab reports.

The trial court ruled that it would allow the State to introduce the crime lab reports into evidence without the presence of the analysts who performed the tests. As Exhibit 1, the State introduced a report of laboratory analysis confirming that substances found inside the residence were cocaine and marijuana. The State also submitted as Exhibit 2 a lab report finding that Brown's fingerprints were contained on two items of Pyrex glassware found in the residence. Although Brown failed to abstract this portion of the hearing, the record shows that the trial court explained that it was allowing Exhibit 2 into evidence over Brown's objection because the crime lab is "overloaded and they have hundreds of cases." The court further stated that there was "no doubt" that the crime lab employee who performed the fingerprint analysis was an expert.

Brown again argued in his motion for dismissal that the trial court erred in allowing the crime lab reports into evidence without the presence of the lab analysts and asserted that the fingerprint evidence was the only evidence connecting him to the contraband found inside the residence. The trial court stated that if it were a criminal trial, it would probably grant the motion for dismissal, but that the question was whether Brown violated his probation. In finding that Brown did violate the conditions of his probation by being involved in the possession and manufacturing of controlled substances, the trial court noted that Brown came to the residence where the contraband was found with a large amount of money, that he fled toward the front door of the house when the police confronted him, and that his fingerprints were found on items that were commonly used in the manufacture of crack cocaine. The court revoked Brown's probation and sentenced him to five years' imprisonment.

On appeal, Brown argues the trial court erred when it allowed into evidence two crime laboratory reports over his objection because it violated his constitutional right to confront the experts who made the reports.

To revoke a defendant's probation, the trial court must find by a preponderance of the evidence that the defendant failed to comply with a condition of his probation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). On appeal, the trial court's decision that the defendant failed to comply with the conditions of his probation will not be reversed unless it is clearly against the preponderance of the evidence. Id. Because the State's burden in revocation proceedings is only a preponderance of the evidence, evidence that is insufficient to support a criminal conviction may be sufficient to revoke probation. Id. Moreover, because a determination of a preponderance of the evidence depends on questions of credibility and weight to be given testimony, deference is given to the trial court's superior position in this regard. Id.

Although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront adverse witnesses does apply. Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990). This right has been codified in Ark. Code Ann. § 5-4-310(c) (Repl. 1997), which states that the defendant "shall have the right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation." In Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989), this court held that in a revocation proceeding, the trial court must balance the probationer's right to confront witnesses against grounds asserted by the State for not requiring confrontation. The trial court must first assess the explanation offered by the State for why confrontation is undesirable or impracticable. Id. A second factor that may be considered is the reliability of the evidence which the government offers in place of live testimony. Id.

The admissibility of reports from the State Crime Laboratory is specifically addressed in Ark. Code Ann. § 12-12-313 (Repl. 2003). The pertinent provisions of this statute recognize a defendant's right to cross-examine the laboratory analysts and provide that their presence and testimony may be compelled if ten days' prior notice is given.

Here, Brown filed a formal notice of his intent to cross-examine any witnesses who might submit reports regarding evidence in this case at least ten days prior to the revocation hearing. Because the State offered no explanation for why the laboratory analysts were unavailable to testify, Brown contends that the trial court erred in allowing the crime lab reports into evidence and that this violated his constitutional right to confront the witnesses.

The State contends, in part, that any error arising from the denial of Brown's right to confront the lab witnesses is harmless error. The denial of the right to confront a witness may be harmless error under certain circumstances. Jones v. State, supra. Whether such an error is harmless in a particular case depends upon a number of factors, including the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the strength of the prosecution's case. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986)).

We agree that the error, if any, was harmless. Here, Brown drove up in a maroon Cadillac to a house at which officers were conducting a drug surveillance. When the officer identified himself and approached, Brown threw a bag containing over $11,000 in cash to the ground and took off running to the door of the house, in which there were large amounts of suspected drugs, drug paraphernalia, guns, and additional cash. Brown's probation officer testified that Brown had no job. Even if the fingerprint and drug-analysis reports are excluded, we cannot say that the trial court erred in revoking Brown's probation given the evidence connecting Brown to the house and the illegal activities being conducted there.

Affirmed.

Bird and Crabtree, JJ., agree.