State Of Louisiana VS Russell J. Beauchamp, Jr.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0451 STATE OF LOUISIANA VERSUS RUSSELL J BEAUCHAMP JR Judgment Rendered September 10 2010 On Appeal from the 21st Judicial District Court in and for the Parish of Livingston State of Louisiana District Court No 23259 The Honorable Ernest G Drake Judge Presiding Frederick Kroenke Baton Rouge La Counsel for Defendant Appellant Russell J Beauchamp Jr Leslie Burns Counsel for Appellee Livingston La State of Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J CARTER C J The defendant Russell J Beauchamp Jr was charged by bill of information with one count of distribution of cocaine a violation of La R S 1 967A 40 and entered a plea of not guilty Following a jury trial he was found guilty as charged by unanimous verdict He moved for a new trial for a postverdict judgment of acquittal and for arrest of judgment but the motions were denied He was sentenced to thirty years at hard labor with the first two years of the sentence without benefit of probation parole or suspension of sentence On appeal the defendant contends the admission of the scientific analysis report into evidence violated his rights under the Confrontation Clause of the United States Constitution For the following reasons we affirm the conviction and sentence FACTS On June 14 2007 Triparish Narcotics Task Force Agents Bryan Mannino and Garrett Fitzgerald were driving on Summer Street in Denham Springs in an undercover vehicle equipped with a video camera Agent Mannino saw the defendant riding a bicycle and held up four fingers signaling he wanted to buy forty dollars worth of crack cocaine The defendant asked You want a 40 Agent Mannino answered affirmatively and the defendant told him to pull over at a nearby bar The defendant left Agent Mannino s field of vision returning shortly thereafter and placing the crack cocaine on the hood of the undercover vehicle Agent Mannino put forty dollars on the ground as instructed to by the defendant and secured the cocaine The State played a recording of the drug transaction at trial The Tri parish area includes the Livingston Parish Sheriffs Office the Tangipahoa Parish Sheriffs Office and the St Helena Parish Sheriffs Office 2 MELENDEZDIAZ VIOLATION In his sole assignment of error the defendant argues the State failed to prove all of the elements of the offense alleging the use of a scientific analysis report to establish that the substance distributed was cocaine violated MelendezDiaz v Massachusetts S U 129 S 2527 Ct 174 L 314 2009 2d Ed In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him S U Const amend VI The Confrontation Clause bars 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 v Washington 541 U 36 53 54 124 S 1354 1365 158 L 177 S Ct 2d Ed 2004 Statements are non testimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency Davis v Washington 547 U 813 822 126 S 2266 S Ct 2273 165 L 224 2006 2d Ed Statements are testimonial when the circumstances objectively indicate there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution Davis 547 U at 822 S 126 S at 2273 2274 Ct Melendez Diaz involved the review of convictions for distribution of cocaine and trafficking in cocaine Melendez Diaz S U at 129 Ct S at 25302531 At trial over a defense objection under Crawford the prosecution relied upon certificates of analysis to establish that the 3 substance hidden in the police car used to transport the defendant and two other men contained cocaine MelendezDiaz S U at 129 S at Ct 2531 As required under Massachusetts law the certificates were sworn to s before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health MelendezDiaz S U at 129 S at 2531 Ct The Court in MelendezDiaz held that the certificates were quite plainly affidavits falling within the core class of testimonial statements subject to the Confrontation Clause and that the analysts were witnesses for purposes of the Sixth Amendment MelendezDiaz S U at 129 S at 2532 Additionally the Court held that the power to subpoena Ct the analysts could not substitute for the right of confrontation because compulsory process was of no use to a defendant if the witness was unavailable or simply refused to appear MelendezDiaz S U at 129 S at 2540 The Court held that converting the prosecution duty Ct s under the Confrontation Clause into the defendant privilege under state s law or the Compulsory Process Clause would shift the consequences of adverse witness no shows from the State to the accused MelendezDiaz S U at 129 S at 2540 The value of the Confrontation Clause to a Ct defendant cannot be replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses to do so MelendezDiaz S U at 129 S Ct at 2540 The Court in MelendezDiaz however contrasted the statutory scheme in Massachusetts with other states noticeanddemand statutes 4 which require the prosecution to provide notice to the defendant of its intent to use an analyst report as evidence at trial and give a defendant a period of s time in which to object to the admission of the evidence absent the analyst s appearance live at trial MelendezDiaz S U at 129 S at 2541 Ct The Court held that notice and demand statutes do not shift the burden because t defendant always has the burden of raising his Confrontation he Clause objection notice and demand statutes simply govern the time within which he must do so MelendezDiaz S U at 129 S at 2541 Ct The Court noted that it is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial announcing the intent to present certain witnesses MelendezDiaz S U at 129 Ct S at 2541 There is no conceivable reason why a defendant cannot similarly be compelled to exercise his Confrontation Clause rights before trial MelendezDiaz S U at Louisiana Revised Statutes 129 S at 2541 Ct 499A 15 authorizes all criminalistics laboratories established by the laws of Louisiana or of the United States and all coroners forensic pathologists and other persons partnerships corporations and other legal entities practicing in fields of knowledge and expertise in the gathering examination and analysis of evidence by scientific means to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis are made 2 Louisiana Revised Statutes 15 and 15 were amended by 2010 La Acts 499 501 693 ef 08 All references herein are to the versions of the statutes prior to Act 2010 15 693 5 Louisiana Revised Statutes 15 in pertinent part provides 500 In all criminal cases the courts of this state shall receive as evidence any certificate made in accordance with S 499 R 15 subject to the conditions contained in this Section and R 15 The certificate shall be received in evidence S 501 as prima facie proof of the facts shown thereon and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom Louisiana Revised Statutes 15 provides 501 A The party seeking to introduce a certificate made in accordance with R 15 shall not less than ten days S 499 prior to the commencement of the trial give written notice of intent to offer proof by certificate Such notice shall include a copy of the certificate B 1 The party against whom such certificate is offered shall be permitted to subpoena on cross examination the person who performed the examination or analysis of the evidence If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena the certificate shall not be prima facie proof of its contents or of proper custody 2 When the attorney for the defendant or the defendant acting in his own defense requests that a subpoena issue to the person who performed the examination or analysis the request shall be in writing and shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross examination In State v Cunningham 2004 2200 La 6 903 So 1110 05 13 2d 1122 the Louisiana Supreme Court held that the statutory scheme set forth in La R 15 S 499501 is not unconstitutional under Crawford The court noted that if a defendant requests a subpoena at least five days prior to trial for the person who performed the analysis of the evidence or if the person responds to the subpoena the certificate is not prima facie proof of its contents has no evidentiary value and the State has to call the relevant 3 The Louisiana Supreme Court was examining the statutes prior to their amendment by 2010 La Acts 693 eff 08 2010 15 6 witnesses to prove its case Cunningham 903 So at 1121 The court 2d found fjrom a practical standpoint these statutes are no different from a situation in which the State offers hearsay evidence at trial If defendant does not contemporaneously object the hearsay is allowed into evidence Cunningham 903 So at 1121 2d In the instant case approximately four months prior to trial the State filed a notice of intent to introduce a scientific analysis report at trial attaching a copy of the report to the notice accordance with La R S The report was made in 499 15 and indicated that the evidence was determined to contain cocaine At trial the State offered the certificate of analysis into evidence and the defense objected because the certificate did not contain the date the analysis was conducted only the date of completion and because of the lack of confrontation The State responded that the certificate listed the date of examination In regard to the objection regarding the lack of confrontation the State responded that it filed a notice of intent to introduce the certificate the criminal code has a procedure to allow the party against whom the certificate is offered to cross examine the analyst and the defense failed to follow that procedure The certificate was admitted into evidence Following conviction but prior to sentencing the defense moved for a new trial a postverdict judgment of acquittal and for arrest of judgment arguing that admission of the certificate of analysis at trial violated MelendezDiaz At the hearing on the motions the State argued that the defendant could have exercised his confrontation rights when given notice 4 The court in Cunningham also noted a defendant must file a motion to suppress in order to contest an unconstitutional search Cunningham 903 So at 1121 n 1 2d l 7 that the State was going to introduce the certificate of analysis at trial The trial court denied the defendant posttrial motions s Admission of the scientific analysis report into evidence at trial did not violate MelendezDiaz and thus the State presented sufficient evidence that the substance the defendant distributed was cocaine Louisiana Revised Statutes 15 is precisely the kind of notice and demand statute that the 501 court in MelendezDiaz recognized to be permissible under the Confrontation Clause The Louisiana statutory scheme La R 15 et S 499 seg merely requires a defendant to exercise his Confrontation Clause rights prior to trial If the defendant had made a timely request for the issuance of a subpoena for the person who performed the analysis the certificate would not have been admissible into evidence in lieu of such testimony It would have been incumbent upon the State to procure the attendance of the person making the certificate at trial and to offer that testimony to establish the results of the examination See State v Landry 583 So 911 912914 2d La App 1 st Cir 1991 This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED
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