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State of Florida v. Lorenzo Cephus Johnson
SC06-86
OUR NEXT CASE IS LORENZO
LORENZO -- STATE OF FLORIDA v. LORENZO JOHNSON. SINCE YOU VERY WERE LAST YEAR WE HAVE EXTENDED THE MICROPHONE. FOR EASE OF USE. AND SO PLEASE BE SURE THAT, THAT'S BROUGHT CLOSELY TO YOUR SPEAKING VOICE SO THAT THE COURT CAN APPRECIATE AND UNDERSTAND THE FULL ARGUMENTS IF YOU WILL. >> MAY IT PLEASE THE COURT. >> THANK YOU. >> MY NAME THE MARILYN BECCUE I REPRESENT THE STATE OF FLORIDA. I WANT TO POINT OUT A FEW OF THE RELEVANT FACTS AND THEY ARE FAIRLY BRIEF. THE APPELLANT IN THIS CASE WAS CHARGED WITH POSSESSION OF COCAINE, POSSESSION OF CANNABIS. INTRODUCTION OF CONTRABAND AT THE DETENTION FACILITY AND RESISTING AN OFFICERS -- OFFICER WITHOUT VIOLENCE. EVENT THAT LED TO HIS ARREST AND CHARGING OCCURRED IN DECEMBER OF 2001. DECEMBER 21st, 2001. HE WAS PRESIDENT TRY UNTIL JUNE 28th OF 2004. AND IN THAT INTERVENING TIME ANNA DEACON THE ANALYST AT FDLE WHO CONDUCTED THE TEST ON THE SUBSTANCE HAD LEFT THE PLOY OF FDLE WAS AND WORKING FOR THE FBI IN QUANTICO, VIRGINIA. AT THE TIME A NUMBER OF PEOPLE TESTIFIED. >>THE OFFICERS OBVIOUSLY WHO WERE INVOLVED IN HIS ARREST. THERE WERE FOUR OFFICERS THAT TESTIFIED, THREE WITH REFERENCE TO THE DRUG OFFENSES AND TWO THAT ARE VERY IMPORTANT, BECAUSE OFFICER STEVENSON TESTIFIED THAT SHE WAS WITH HIS -- THIS QUICK UNTOMORROW ATTACK DIVISION WHICH WAS A SPEFBGT NARCOTICS DIVISION OF THE POLICE DEPARTMENT, SHE ALSO TESTIFIED AS TO HER EXPERIENCE AND HER TRAINING WITH REFERENCE TO IDENTIFYING NARCOTICS. SHE HAD 40 HOURS TRAINING AND ABOVE AND BEYOND THAT SOME ADDITIONAL CONTINUING EDUCATION COURSES THAT WERE PUT ON BY THE DRUG ENFORCEMENT AGENCY. >> ARE YOU GETTING TO HARMLESS ERROR ARGUMENT. >> YES, I AM, YOUR HONOR, ACTUALLY. >> BEFORE WE GET TO THAT. WE STILL -- WE FIRST NEED TO DETERMINE WHETHER THIS WAS TESTIMONIAL, WHETHER THE LAB REPORT WAS TESTIMONIAL AND THEN IF IT WAS WHETHER THERE WAS HARMLESS ERROR. >> RIGHT. MY CONCERNS ARE THAT YOU DIDN'T HAVE THE BENEFIT OF BRIEFING DAVIS v. WASHINGTON. BUT IT SEEMS LIKE AT LEAST AFTER THAT CASE THE DIFFERENCE BETWEEN TESTIMONIAL AND NOT TESTIMONIAL MAY BE DEPENDENT UPON WHEN THE STATEMENTS WERE MADE AND CERTAIN STATEMENTS MADE BEFORE THE INVESTIGATION OF A CRIME IDENTICAL TO STATEMENTS MADE AFTER THE COMMISSION INVESTIGATION OF A CRIME MAY DETERMINE WHETHER THEY WERE TESTIMONIAL OR NOT. AND IT SEEMS LIKE MAYBE A REPORT THAT WAS DONE BEFORE THE CRIME OCCURRED, THE BUSINESS RECORD IS NOT TESTIMONIAL, BUT WHEN IT'S DONE AFTER THE CRIME OCCURRED, DURING THE INVESTIGATION OF A CRIME, EVEN THOUGH IT'S A BUSINESS RECORD DAVIS MAY SEEM TO HOLD IT'S TESTIMONIAL. >> I THINK THE INTERESTING THINGS ABOUT DAVIS IS IT TAKES A NOTION THAT SOMETHING THAT YOU WOULD REASONABLY ANTICIPATE USE AT TRIAL ISN'T NECESSARILY THE TEST. BECAUSE -- >> AND THAT'S NOT WHAT I PROPOSED. I KNOW THAT DAVIS DIDN'T ADOPT THAT TEST. THEY SEEMED TO ADOPT THE TEST IF IT'S IN THE INVESTIGATION OF A COMPLETED CRIME THEN IT'S -- AND IT'S MADE TO LAW ENFORCEMENT IT'S TESTIMONIAL. SO I'M NOT TALKING ABOUT ANY TEST THAT THEY MENTIONED IN CRAWFORD AND DIDN'T ADOPT. I'M TALKING ABOUT WHAT THEY SAID IN DAVIS. >> SO IN DAVIS WHAT THEY WERE TALKING ABOUT WAS MORE ALONG THE LINES OF WHAT THEY HAD IN CRAWFORD WHICH WAS A SUBJECTIVE KIND OF INTERPRETATION OF EVENTS. IT WASN'T AN OBJECTIVE TEST LIKE YOU HAVE AT THE LAB REPORT. THEY WERE STILL DETERMINING MORE OF WHAT THEY MEANT BY INTERROGATION. IN DAVIS WHEN THEY EVALUATED THOSE STATEMENTS. >> WHY WAS THIS SUBSTANCE TESTED BY FDLE? >> IT WAS TESTED TO DETERMINE WHAT THE SUBSTANCE WAS. TO DETERMINE DEFINITIVELY WHAT THE SUBSTANCE WAS. ULTIMATELY IT WAS LET THE STATE KNOW WHAT THEIR EVIDENCE WAS. -- >> WHAT THERE EVIDENCE WAS TO PROSECUTE THE VIOLATION OF THIS LAW; RIGHT? >> CORRECT. >> BUT IF THE TEST DETERMINED THAT IT WASN'T COCAINE AND IT WASN'T CANNABIS THE REPORT ITSELF STILL WOULD HAVE BEEN GENERATED AND STILL WOULD HAVE BEEN FILED. WE NEED TO LOOK AT WHAT THE -- THE EVIDENCE THAT WAS INTRODUCED IN THE REPORT ITSELF. >> THE ENTIRE ESSENCE OF THIS CRIME IS REALLY TURNS AROUND WHAT THE LAB REPORTS ARE GOING TO SHOW; RIGHT? >> THAT IS THAT YOU HAVE VIOLATED THE LAW IF IT TURNS OUT TO BE AN ILLICIT DRUG. YOU HAVEN'T VIOLATED THE LAW IF IT TURNS OUT TO THAT IT WASN'T AN ILLICIT DRUG. CORRECT. >> SO I'M HAVING REALLY DIFFICULTY IN VIEW OF NOW, YOU KNOW SOME MORE HELP FROM THE SUPREME COURT WITH REFERENCE TO FLUSHING OUT CRAWFORD SEEMS TO ME THAT THIS JUST FITS PRECISELY IN THE TESTIMONY THAT HAS BEEN OUTLINE SEWED FAR BY THE SUPREME COURT THAT IS THAT THIS IS SOMETHING THAT IS DONE EXPLICITLY IN ORDER TO PROSECUTE THIS CRIME. AND ORDINARILY WOULD BE DONE IN ANTICIPATION OF USE AGAINST THE DEFENDANT OR THE PROSECUTION OF THE TIME. >> CRAWFORD DIDN'T SAY THAT THE STATE ISN'T ALLOWED TO USE DOCUMENTARY EVIDENCE TO PROVE AN ELEMENT OF THE OFFENSE. THE FACT IT WAS PROVED TO USE THE ELEMENT OF THE OFFENSE ISN'T WHAT MAKE SOMETHING TESTIMONIAL OR NOT TESTIMONIAL. IT'S MORE THE STATEMENT ITSELF. YOU NEED TO LOOK AT THE STATEMENT ITSELF. IT'S NOT A SUBJECTIVE INTERPRETATION OF EVENTS. IT'S AN OBJECT TO TEST. >> WHAT WOULD BE THE STATE'S POSITION IF WE TOOK CRAWFORD OUT OF THE EQUATION AND WE ANALYZED THIS UNDER ROBERTS? >> THE STATE'S POSITION IT WOULD BE ADMISSIBLE UNDER ROBERTS. >> GIVE ME THE ANALYSIS. >> THAT THERE IS AN ADEQUATE RELIABILITY BECAUSE THESE TESTS ARE COMMONLY USED IN THE SCIENTIFIC REALM. NOT JUST BY THE FDLE BUT IN THE IRRELEVANT SCIENCE ITSELF AND THAT THEY -- THEY CAN BE QUALIFIED AND THEY CAN BE REPLICATED TO DETERMINE THEY ARE LEE -- RERELIABLE. >> WE ARE IN THE ERA OF CRAWFORD. AND SO WHAT DOES CRAWFORD -- I THINK THIS ALL TURNS ON WHETHER OR NOT THIS REPORT IS TESTIMONIAL. AND SO WHAT IS THE DEFINITION OF TESTIMONY OR TESTIMONIAL FROM CRAWFORD? >> WELL, UNFORTUNATELY THEY DIDN'T GIVE US BLACK LETTER LAW AS TO WHAT THE DEFINITION OF TESTIMONIAL IS. THEY DID GIVE US SOME EXAMPLE BY WHICH WE CAN COMPARE TO DETERMINE WHETHER OR NOT SOMETHING IS TESTIMONIAL AND THEY TALKED ABOUT PRIOR TESTIMONY AT PRELIMINARY HEARINGS. PRIOR TESTIMONY AT A TRIAL, PRIOR TESTIMONY IN A GRAND JURY HEARING AND POLICE INTERROGATION. THE STATES -- >> ISN'T THERE ALSO SOME LANGUAGE IN CRAWFORD THAT TALKS ABOUT THAT TESTIMONY AS A DECLARATION OR AFFIRMATION THAT IS USED TO PROVE A FACT? >> YES. AND SO IF YOU TAKE THAT DEFINITIONS -- DEFINITION OF "TESTIMONY" WASN'T THIS LAB REPORT USED AS A DECLARATION BY WHOEVER DID THIS ANALYSIS. >> UH-HUH. >> OF A FACT THAT WAS GOING TO BE USED A AT TRIAL. WHY DENT -- WHY DOESN'T THIS REPORT FIT THE DEFINITION OF TESTIMONY AS OUTLINED IN CRAWFORD? >> BECAUSE YOU HAVE TO LOOK AT CRAWFORD AS A WHOLE. YOU CAN'T JUST TAKE THIS ONE FACTOR. WHAT THEY DIDDEST EVALUATED THE ENTIRE BASIS OF THE CONFRONTATION CLAUSE. AND THEY DID USE THAT DEFINITION AS FAR AS WHAT IS GENERALLY CONSIDERED TESTIMONY. BUT UTLEY THEY DIDN'T SAY THAT -- WHAT THE TESTIMONY WAS FOR PURPOSE OF THE CONFRONTATION CLAUSE. WHAT THEY SAID WAS IT SEEMS LIKE THIS PRIOR -- >> LIKE. BUT THEY ALSO SAID THIS WAS NOT AN EXCLUSIVE LIST; CORRECT? >> CORRECT. >> AND SO WE KNOW THAT IF IT'S PRIOR TESTIMONY OR THOSE FACTORS THAT THEY DID, IN FACT, OUTLINE THAT, THAT IS TESTIMONIAL. BUT CERTAINLY THAT IS NOT IN AN EN -- EXCLUSIVE LIST. SO IF WE GO BACK TO THE MEANING OF TESTIMONY, THE ROUTE OF TESTIMONIAL -- THE ROOT OF TESTIMONIAL I HAVE A HARD TIME TRYING TO FIGURE OUT WHY THIS IS NOT A STATEMENT OR AFFIRMATION FOR THE PURPOSE OF A ESTABLISHING A FACT. WELL, CRAWFORD DID AND I'M HOPING I WILL ANSWER YOUR QUESTION. WHAT CRAWFORD DID -- AND I THINK IT'S IMPORTANT TO BASE THE EVALUATION ON THIS -- IS IT DIDN'T EXPAND THE UNIVERSE OF STATEMENTS THAT ARE SUBJECT TO CONFRONTATION. IT LIMITED IT. BEFORE CRAWFORD ALL HERE'S STATEMENT WERE SUBJECT TO CON FRONT STATION UNLESS THEY HAVE RELIABILITY WHICH WAS THE ROBERT'S TEST. IT LIMITED IT HOW? WHAT'S IN CRAWFORD SAYS THAT WE'RE LIMITING WHAT IS TESTIMONIAL? >> WELL, THE BASIS OF THE ENTIRE OPINION IN CRAWFORD IS LIMITING IT BACK TO THOSE KINDS OF THINGS WITH BY THE FRAMERS WERE CONCERNED. AND THE EXAMPLES AND THE DISCUSSION THAT THEY HAVE IN CRAWFORD ALL DEAL WITH THIS KIND OF SUBJECTIVE GIVING OF INFORMATION BY A WITNESS AND THAT THE FACT OF THE CONFRONTATION CLAUSE, THE IMPORTANCE OF THE CONFRONTATION CLAUSE IS TO TEST SOMEONE BIAS, DEMEANOR ON THE STAND, THOSE KINDS OF THINGS. >> WHAT ARE THE THINGS THEY MENTIONED AS FALLING WITHIN THAT IS AFFIDAVIT; CORRECT? >> YES. >> AND WHAT'S THE DIFFERENT -- DIFFERENCE BETWEEN THE REPORT THAT WAS ISSUED HERE THAT SAID THE EXHIBIT WERE ONE CHUNK AND THREE BAGS OF TPHRAPBT MATERIAL RESULTS WERE -- PLANT MATERIAL AND CANNABIS. WHAT THE DIFFERENCE BETWEEN THAT AND FILING AN AFFIDAVIT WHICH IS DIFFERENT STYLE AT THE TOP AND SAYING MY NAME IS SO AND SO AND WE EXAMINE A LARGE WHITE CHUNK AND THREE BAGS OF PLANT MATERIAL AND WE FOUND THAT THE RESULTS WERE COCAINE AND CANNABIS OF 1.3 GRAMS. AND INTRODUCING THAT AND THEN SIGN ANNA SPWAEUS DECAN UNDER PENALTY OF PERJURY. THAT SEEMS WHAT THIS REPORT DOES. BUT IT HAS A DIFFERENT TITLE ON IT. IT HAS DFLE. >> I THINK THE AFFIDAVIT YOU ARE REFERRING TO IN CRAWFORD WERE AFFIDAVITS OF INDIVIDUALS WHO HAD WITNESSED SOMETHING. THOSE KINDS OF AFFIDAVITS. THEY WEREN'T REFERRING IN THE STATE'S OPINION TO SOMETHING LIKE A LAB REPORT. THAT IS THE -- THE LAB REPORT IS DISSIMILAR TO THE TYPES OF THINGS THEY WERE TALKING ABOUT IN CRAWFORD. IT'S MORE SIMILAR TO SOMETHING LIKE BUSINESS RECORD WHICH THEY HAD SAID WAS -- HAD ALWAYS BEEN AN EXCEPTION. I WOULD LIKE TO GO BACK TO THAT. I'M NOT SURE THAT -- TO MY SATISFACTION ADEQUATELY RESPONDED TO JUST -- JUSTICE WELLS' QUESTION. BEFORE CRAWFORD, ALL RIGHT. THERE'S A PIECE OF PAPER, AUGUST 28th, 2002 SIGNED BY ANNA DEACON. AND IT SAYS THAT SOME SAMPLES BELONGING TO LORENZO JOHNSON ARE COCAINE AND CANNABIS. HOW IS THIS EVEN -- HOW WOULD THIS HAVE COME IN THE IT WAS CHALLENGED PRECRAWFORD? IN OTHER WORDS -- IS THE STATE SAYING THIS IS A BUSINESS RECORD? >> IT'S A BUSINESS RECORD IN THE SENSE IT'S REGULARLY KEPT IN THE COURSE OF THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT. >> WOULD YOU AGREE THAT WHEN BUSINESS RECORDS SUCH AS -- MORE HOSPITAL RECORDS THAT ARE ARE DIFFERENT FROM RECORDS THAT ARE GATHERED IN THE COURSE OF INVESTIGATING A CRIME AND THAT THERE IS NEVER BEEN -- AT LEAST TO MY KNOWLEDGE SOME WHOLESALE IDEA THAT ANY RECORD OF A LAW ENFORCEMENT AGENCY CAN JUST COME INTO EVIDENCE WITHOUT THE PERSONAL -- PERSON WHO PERFORMED THE TEST TESTIFYING AS TO HOW THIS CHAIN OF CUSTODY, HOW THE TEST WAS PERFORMED WHETHER THERE WAS ANY YOU KNOW -- WHAT -- WHAT TYPE OF TEST WAS DONE. SO I DON'T SEE HOW THIS WOULD HAVE SURVIVED UNDER -- ASSUMING IT'S NONTESTIMONIAL, SURVIVE OHIO v. ROBERTS TEST FOR RELIABILITY. >> WELL, IT'S -- THE WAY IT SURVIVES THE TEST OF RELIABILITY. IT'S NOT THE PERSON OR AGENCY WHO CONDUCTED THE TEST. IT IS THE RELIABILITY OF THE ACTUAL SCIENTIFIC TEST. AND THINGS LIKE CHAIN OF CUSTODY AND THOSE TYPES OF THINGS WHERE TESTIFIED TO. >> WHAT WAS THE TEST? TELL ME WHAT WAS THE TEST -- TESTIMONY THAT LED TO THE INTRODUCTION OF THIS EXHIBIT. >> WELL, JAMES FILL PERTH WHO WAS THE SUPERVISOR AT THE FDLE IN TAMPA -- OF THE CHEMISTRY SECTION ANIWAY TESTIFIED THAT AS TO IF PROCEDURES USED WHEN F -- FDLE OBTAINS EVIDENCE FROM LAW ENFORCEMENT AGENCY SPECIFICALLY IDENTIFIED TO A PARTICULAR CASE NUMBER. IT'S NOT IDENTIFIED TO A PARTICULAR DEFENDANT. IT'S A PARTICULAR CASE NUMBER. AND HOW THE CHEMIST -- HE WOULD TAKE THE NUMBER. ASSIGN A CHEMIST, THE CHEMIST WOULD COME TO HIM AND OBTAIN THE EVIDENCE OUT OF THE VAULT. IT WAS KEPT IN VAULT PRIOR TO IT BEING RELEASED. THE KEPL KPHEUS -- CHEMIST WOULD CONDUCT THE TEST. FILE A CASE WHERE MY -- MR. SILVER TESTIFIED STPHE HE WOULD REVIEW THE ENTIRE FILE AND THE RESULTS OF THE TEST AND EITHER APPROVE IT OR DISAPPROVE IT. AND IF HE APPROVED IT NO EVIDENCE WAS GOING TO COME OUT OF THAT LAB UNLESS MR. SILVER REVIEWED THAT AND MADE -- >> THIS PIECE OF PAPER COULD COME INTO EVIDENCE WITH THAT TYPE OF GENERAL TESTIMONY? >> THE BUSINESS RECORD. >> YES. >> WELL FOUNDATIONLY IT'S COME INTO EVIDENCE AS A BUSINESS RECORD BECAUSE IT'S REGULARLY TESTING THE COURSE OF BUSINESS. AND I DON'T -- YOU KNOW ROBERTS OF COURSE WAS A BALANCING DETERMINATION ABOUT WHETHER IT'S RELIABLE AND THERE'S NO INDICATION THAT THE TESTS THAT ARE PERFORMED ON A DAILY BASIS BY FDLE TO -- ESPECIALLY IN A CIVIL CASE TO DETERMINE EVIDENCE IN THE CRIMINAL CASE WHICH HAS A HIGHER STANDARD WOULD BE IN ANY WAY UNRELIABLE -- >> IS THERE A CASE OUT OF FLORIDA WHICH HAS HELD PRIOR TO GETTING INTO CRAWFORD THAT THIS TYPE OF DOCUMENT WOULD COME IN AS A BUSINESS RECORD? >> YES, AND THAT WAS TALKED ABOUT AT THE TRIAL AND IT WAS WILLIAM v. STATE AND FIFTH DCA AND I THINK I HAVE THAT TO CITE FOR YOU. I DON'T HAVE IT RIGHT WITH ME RIGHT NOW. IT'S WILLIAMS v. STATE. JUSTICE ANSTEAD HAS A QUESTION. >> AREN'T THERE, IN FACT, CASES THAT HOLD THE LABORATORY REPORTS, WHICH DO ANALYSIS LIKE THIS ARE NOT ADMISSIBLE IN EVIDENCE THAT THEY ARE HERE SAY? >> WELL, NOT TO MY KNOWLEDGE. >> IF IT WAS PRECRAWFORD. YOU ARE NOT AWARE OF ANY PRECRAWFORD DECISION THAT HELD THAT A LAB REPORT LIKE THIS WAS HERESAY AND COULD NOT COME UNDER ANY EXCEPTION TO THE HEARSAY. I'M AWARE OF THE CASES. I'M AWARE OF THE CASES THAT SAY IT'S ADMISSIBILITY UNDER THE BUSINESS RECORDS EXCEPTIONS. I'M NOT AWARE OF CASES THAT TALK ABOUT AN OUTRIGHT DENIAL OF -- >> SO YOUR ADMISSION OF A LAB REPORT. YOU ARE NOT AWARE OF ANY CASES THAT HOLD THAT THEIR LAB REPORTS LIKE THIS ARE NOT ADMISSIBLE IN EVIDENCE PRE-CRAWFORD. >> NO, I'M NOT. I'M SURE THERE'S DISCUSSIONS IN CASES ABOUT WHETHER OR NOT IT'S ADMISSIBLE AND OBVIOUSLY PRECRAWFORD THERE WAS AN EVALUATION OF RELIABILITY. SO CERTAINLY THERE COULD BE LAB REPORTS THAT WERE NOT ADMISSIBLE BECAUSE THEY WERE DEEMED TO BE FOR SOME REASON UNRELIABLE. BUT POST-CRAWFORD THE QUESTION OF RELIABILITY DOESN'T COME UP THAT'S PUTTING THE CART BEFORE THE HORSE IF YOU DETERMINE WHETHER OR NOT IT'S TESTIMONIAL AND IF IT IS TESTIMONIAL THEN OBVIOUSLY THE ONLY WAY YOU CAN TEST THE RELIABILITY IS THROUGH CROSS-EXAMINATION AND THAT'S THE BASIS OF CRAWFORD. >> JUSTICE BELL HAS A QUESTION. YOU ARE INTO YOUR REBUTTAL. MAKE A VERY CONCISE ANSWER. >> FROM YOUR EXPERIENCE AND THIS TYPE OF REPORT WHAT WOULD THIS -- IF THIS LADY HAD BEEN CALLED WHAT WOULD SHE HAVE TESTIFIED TO GIVEN THE NUMBER THEY RUN, ET CETERA? CAN YOUS SPEAK TO THAT ISSUE? >> IT'S CERTAINLY SPECULATIVE. BUT THE DEFENDANT DIDN'T IDENTIFY ANY SPECIFIC QUESTIONS THAT THEY WANTED TO ASK HER. AND YOU WOULD PRESUME THAT WHAT SHE WOULD TESTIFY TO IS YES, I DID THIS TEST ACCORDING TO MY FILE. ACCORDING TO MY REPORT. IT RELATED TO THIS NUMBER ACCORDING TO MY REPORT. AND ACCORDING TO MY REPORT THE SUBSTANCES WERE COCAINE AND CANNABIS. SO I DON'T KNOW THAT YOU CAN SAY THAT MEESE TOOKON WOULD HAVE ANY INDEPENDENT RECK HRUBGION OF THIS PARTICULAR TEST THAT SHE DUHUNDREDS OF TEST EVERY YEAR. >> SO SHE WOULD HAVE BEEN -- AS WE CAN ASSUME TESTIFYING FROM THE SAME INFORMATION THAT THE SUPERVISOR TESTIFIED ON THE RECORD? >> YES, WHAT ABOUT THIS REPORT -- WHAT IN THE REPORT TELLS US WHAT KIND OF -- THAT WAS RUN ON THIS -- ON THIS PIECES OF EVIDENCE? >> THE REPORT ITSELF DOESN'T. IT'S A CASE FILE THAT MR. SILVER REVIEWS THAT INDICATES WHAT TYPES OF TEST. >> BUT MR. SILVER DID NOT -- WAS NOT THERE WHEN THE TEST WERE ACTUALLY RUN. >> NO. HE WASN'T. >> AND MISS DEACON IS THE ONE WHO ACTUALLY PHYSICALLY TOOK THE EVIDENCE AND RAN WHATEVER TESTS. >> THAT'S CORRECT. >> WERE RUN ON HIM. >> USING THE PROTOCAL OF THE FDLE, CORRECT. THANK YOU. MR. SHARWELL. >> I'M WILLIAM SHARWELL. I REPRESENTATIVE THE RESPONDENT LORENZO JOHNSON. IT'S MY POSITION THAT THE LAB REPORT IN THIS CASE IS TESTIMONIAL. IT'S AN AFFIRMATION OR DECLARATION TO PROVE THAT MR. JOHNSON -- >> COULD YOU FOLLOW-UP WITH THE QUESTION I ASKED OF THE STATE. IF FROM YOUR EXPERIENCE AND UNDERSTANDING OF THIS CASE OR OTHERWISE, IF THIS WHRAB ANALYST WHO I ASSUME -- IF THIS LAB ANALYST WHO I ASSUME DOES A LOT OF HAD BEEN CALLED TO TESTIFY AT TRIAL, IS IT YOUR POSITION THAT SHE WOULD HAVE HAD AN INDEPENDENT RECOLLECTION OF THIS PARTICULAR TESTING OR WOULD SHE HAVE SIMPLY DONE WHAT IS NORMALLY DONE JUST LOOKED AT HER FILE AND RECITED ESSENTIALLY WHAT HER SUPERVISOR -- >> YOUR HONOR, IT'S HARD TO TELL WHEN I READ THE PUBLIC RECORD. MOST OF MY EXPERIENCE IN THIS REGARD IS REGARDING THE PUBLIC RECORD. IF SOMEONE COMES IN AND TESTIFIES ABOUT SOMETHING LIKE THAT, I HAD THE EXPERIENCE OF SITTING ON THE JURY IN A DRUG CASE AND THE ANALYST CAME IN AND TESTIFIED WITHOUT NOTE I DID THIS TEST ON THE COCAINE. >> DID THE SUPERVISOR HAVE IN HIS POSSESSION WHATEVER THE FILE IS THAT HAS BEEN TALKED ABOUT THAT SAYS EXACTLY WHAT TEST AND ALL THIS WERE RUB ON THAT OR WAS THE SUPERVISOR JUST TALKING WITHOUT ANY -- >> I BELIEVE WHAT -- WHAT HAPPENED WAS THE SUPERVISOR HAD THE CASE FILE, WHICH PRESUMABLY HAS THAT INFORMATION. BUT THAT DID NOT COME OUT OF THE TRIAL. >> IT DID NOT COME OUT OF THE TRIAL. IT WAS NOT ENTERED INTO. WHAT WENT TO THE JURY WAS THE LAB REPORT WHICH IS STATE EXHIBIT 2. JUSTICE CANTERO HAS A QUESTION. >> LET ME ASK IF YOU. IF THIS WAS A DIFFERENT KIND OF REPORT. IF IT WERE JUST SOME KIND OF CHEMICAL TEST HAD BEEN DONE AND THE COMPUTER SPIT OUT SOME RESULTS. AND THIS WAS A COMPUTER PRINTOUT. IT WASN'T A REPORT SIGNED BY ANYTHING -- ANYBODY. WOULD THAT WHERE ADMISSIBLE DOES THAT VIOLATE CONFRONTATION? >> IF IT WAS DONE BY LAW ENFORCE. IT TESTIMONY WRAL. IT'S AFFIRMATION OR DECLARATION. IN MY EXAMPLE IT'S NOT -- NOBODY IS DECLARING ANYTHING. IT'S THE COMPUTER DECLARING. >> IT'S ESSENTIALLY THE SOFT WEUR N IF COMPUTER SAYING, YOU KNOW, THERE'S A -- >> BUT THE SOFTWARE CAN'T COME INTO CAN COURSE -- COURT. >> BUT WHAT IT IS SOMEBODY DESIGNED THE MACHINE. SET IT UP TO THIS TEST. IT WILL SPIT OUT THESE NUMBERS. BUT IN THAT CASE COULD IS SUPERVISOR TESTIFY OR DOES IT HAVE TO BE THE PERSON WHO ACTUALLY PUT THE TAOERLG INTO THE MACHINE -- PUT THE MATERIAL INTO THE MACHINE. >> IT'S THE PERSON THAT PUT THE MATERIAL INTO THE MACHINE. IF COURT IN THOSE CASES HELD THAT THEY ARE REQUIRED TO -- >> WE ARE TALKING ABOUT AFFIDAVITS WHICH I THINK THE DIFFERENT. >> YEAH. >> I'M JUST TALKING ABOUT A COMPUTER PRINTOUT. >> YOU WOULD STILL HAVE TO -- BE ABLE TO TEST FOR THE ACCURACY OF THE RESULTS IN THE MACHINE. YOU WOULD STILL HAVE KNOW WHO PUT THE STUFF IN THE MACHINE. HOW HEY PUT IT IN AND MAKE SURE IT WAS DONE DIRECTLY. AND YOU NEED THE PERSON THERE THAT TESTIFY THE MACHINE WORKS CORRECTLY. >> LET ME ASK YOU AS I UNDERSTAND IT THERE IS -- THE COURTS ACROSS THE COUNTRY THAT HAVE DEALT WITH THIS ISSUE SINCE CRAWFORD OR -- THEY ARE SPLIT. >> YEAH. AND WITH OUT CHASING THE CRAWFORD RABBIT DOWN THE ROAD, LET'S LOOK AT THIS FROM THE STANDPOINT OF OHIO v. ROBERTS, AND TELL ME WHAT WAS THE SITUATION IN FLORIDA THE DAY BEFORE CRAWFORD CAME OUT AS TO THIS TYPE OF RECORD. >> UNDER OHIO v. REPORTS IT'S MY POSITION THAT THEY HELD THAT THE BLOOD RESULTS FROM A HOSPITAL TEST WERE ADMISSIBLE ONLY BECAUSE THEY VERY DONE BY THE HOSPITAL LAB TECHNICIAN. >> WAS THERE -- >> WERE THERE ANY DECISIONS THAT YOU CAN POINT US TO OUT OF THE DISTRICT COURT ON THIS SPECIFIC TYPE OF SITUATION WHERE YOU HAVE A LAB REPORT, A DRUG TEST FROM FDLE. YES, THE FIFTH DCA CASE IN RIVERA IT WAS CITED AFTER CRAWFORD BUT IT'S IN LANGUAGE OF OHIO v. ROBERTS. >> CORRECT. AND OTHER THAN RIVERA, BECAUSE RIVERA WAS DEALING AS YOU SAY -- IT WAS AFTER ROBERTS -- I MEAN AFTER CRAWFORD BUT IT DIDN'T DEAL WITH POINTER. >> RIGHT RIVERA DEALS WITH THE LANGUAGE OF OHIO v. ROBERTS. >> IS OUR OPINION IN BAYBERG NOW COMPROMISED BECAUSE OF CRAWFORD OR DO YOU SEE THAT HOSPITAL RECORDS FALL INTO A NONTESTIMONIAL MEDICAL RECORD EXCEPTION? >> MY BELIEF THAT THE OHIO v. ROBERT IS ESSENTIALLY DEAD. >> YOUR DECISION WOULD BASICALLY BE IF IT IS HEARSAY IT'S SUBJECT TO CONFRONTATION CLAUSE. >> IF IT'S TESTIMONIAL HEARSAY IT'S SUBJECT TO CONFRONTATION. >> WELL DISTINGUISH ANY EVIDENCE PRESENTED IN TRIAL IS SUPPOSED TO GO TO PROVE A FACT. RIGHT. >> AN ELEMENT OF CRIME OTHERWISE IT'S IRRELEVANT. >> RIGHT. SO WHAT TYPE OF HEARSAY EVIDENCE WOULD YOU WOULD NOT BE SUBJECT TO THE CONFRONTATION CLAUSE. >> WELL MY CONCERN IS THAT YOUR DEFINITION IS SO BROAD THAT YOU ARE BASICALLY INCLUDING WITHIN THE CONFRONTATION CLAUSE A NUMBER OF HEARSAY. >> COCOCONSPIRACY STATEMENTS. TWO GUYS DOG -- TALKING IN THE DINER ABOUT PLANNING A BANK ROBBERY. WHEREAS IF YOU HAVE TWO INDEPENDENT PEOPLE PLANNING SOMETHING AND ONE OF THEM DECIDES TO AFTER THE CRIME IS DISCOVER INFORM ON THE OTHER ONE. I DON'T THINK THAT PROS AS A CONFRONTATION. HOWEVER IF ONE OF THESE PEOPLE WAS A CONFIDENTIAL INFORMANT, UNDER THE CONTROL OF LAW ENFORCEMENT THAT WOULD BE A CONFRONTATION. >> WELL, MY CONCERN IS THE BUSINESS RECORDS. AS I UNDERSTAND IT BUSINESS RECORD RULE WAS AROUND IN THE COMMON LAW FOR A LONG TIME. AND THAT WE'RE GOING TO HAVE TO -- IF WE FOLLOW THE SECOND DISTRICT HERE, DRAW SOME DISTINCTIONS ABOUT THE BUSINESS RECORD RULE. AND IT IS THE -- WHAT IS THE DISTINCTION -- OR WOULD YOU DRAW AN IN -- DISTINCTION OR WOULD YOU SAY THE BUSINESS RULE IS OUT THE WINDOW OR IS THERE SOME BUSINESS RECORDS THAT WOULD COME IN AND OTHERS NOT? WHAT IS YOUR POSITION? >> MY POSITION -- ANYTHING THAT WOULD PROVE A FACT THAT IS ESSENTIAL TO A CRIMINAL CONVICTION DOESN'T HAVE TO BE DIRECTLY ON AN ELEMENT WOULD VIOLATE THE RIGHT TO CONFRONTATION. >> THAT CAN'T BE THE CASE. BECAUSE OTHERWISE IF THERE WAS A BUSINESS REPORT THAT WAS GENERATED 20 YEARS AGO AND YOU ARE TRYING TO INTRODUCE IT OBVIOUSLY TO PROVE A FACT IN TRIAL, IN FACT THAT'S THE CASE WITHIN -- WITH ANY HERE'S SAVE. IF IT WEREN'T THERE TO PROVE A FACT IT WOULDN'T BE INTRODUCED IN TRIAL. >> YOU CORRECT IN THAT. >> IF SOMETHING IS GENERATED BY LAW ENFORCEMENT WITH THE ANTICIPATION -- >> SO GOING BACK TO MY QUESTION ABOUT OUR DECISION IN BAYBERG IS THAT STILL GOOD LAW OR IS THAT BEEN CALLED INTO QUESTION BY CRAWFORD? >> I THINK IT'S CALLED INTO QUESTION. >> THAT'S A HOSPITAL RECORD NOT DONE BY PEOPLE INVOLVED IN INVESTIGATING THE CRIME IT'S DONE BASED ON TREATING A PERSON. HOSPITAL RECORDS. >> RIGHT. >> BUT I DO NOT -- THERE COULD NOT BE ANY PROBLEM UNDER BAYBER INTRODUCING HOSPITAL RECORDS IN THE TRIAL. >> SO THEY ARE STILL GOOD LAW. >> WOULD SAY IT'S GOOD LAW. BUT I THINK THE ENTIRE OHIO v. ROBERTS FRAMEWORK IS CALLED INTO QUESTION. >> WHEN YOU HAVE TESTIMONIAL AND NONTESTIMONIAL -- SKWRAOEUGT. >> YOU HAVE TO FIGURE OUT THE NONTESTIMONIAL WHAT THE PARADIGM FOR AN ANALYSIS IS GOING TO BE. AND THERE'S CERTAINLY -- SO YOU'VE GOT TO LOOK AT RELIABILITY OF THE HEARSAY EXCEPTION. YOU DON'T WANT TO SAY IF IT'S NONTESTIMONIAL IT COMES IN. >> RIGHT. >> YOU HAVE TO LOOK AT HOW IT COMES IN AND WHY AND WHETHER IT IS AN EXCEPTION. >> THE VEHICLE. I DON'T THIS RECORD WOULD QUALIFY. >> THE ONE IN THIS CASE. >> RIGHT. WELL I THINK -- >> IF YOU LOOK AT THE COMMENTARY THROUGH THE RULES THEY TALK ABOUT BOTH -- >> SINCE WE HAVE TO WRITE SO IF WE HAVE TO WRITE SOMETHING IN THIS CASE I WANTED TO MAKE SURE WHAT YOUR POSITION WAS ABOUT THE ONLY TIME THIS COURT TALKED ABOUT A RECORD CLOSE TO THIS, WHICH WAS THE BAYBERG CASE. >> WELL, UNDER DAVIS THE ISSUE THEN WOULD BE IN INTERPRETING BAYBERG THROUGH DAVIS v. WASHINGTON, THE ISSUE WAS WHAT THE PRIMARY PURPOSE OF THE RECORDS? IS THE PRIMARY PURPOSE THE INVESTIGATION OF PROSECUTION OF THE OFFENSE? OR IS IT SOMETHING ELSE? AND IT SEEMS LIKE IN BAYBERG THE COURT SAID THE PRIMARY PURPOSE WAS MEDICAL. IT MAY HAVE BEEN SUBSIDIARY PURPOSES HERE. BUT IT WAS REALLY GENERATED FOR MEDICAL PURPOSES AND, THEREFORE UNDER DAVIS THAT WOULD STILL BE A NONTESTIMONIAL. >> UNDER THIS CASE THE LAB REPORT IS -- >> YOU JUST WANT US TO STICK WITH THIS REPORT AND SAYING THAT THIS IS EITHER WAY IT'S TESTIMONIAL UNDER CRAWFORD. OR ANY ANY EVENT IT'S NOT A BUSINESS RECORD EVEN IF IT IS NON -- IF IT'S NONTESTIMONIAL. >> RIGHT. IF THIS SAME REPORT WERE GENERATED BEFORE THERE WERE FOR SOME REASON GENERATED BEFORE THERE WAS ANY INVESTIGATION OF A CRIME WOULD IT THEN BE TESTIMONIAL? >> YEAH. WHY? >> BECAUSE IT WOULD BE REASONABLY LIKELY THAT IT MIGHT BE USED. WELL THAT'S A VERY TEST THAT CRAWFORD SAID WE ARE NOT GOING TO ADOPT. THEY DIDN'T SAY THEY WERE NOT ADOPTED. THEY DECLINED TO ADOPT A BROADER DEFINITION. BECAUSE IN CRAWFORD AND BOTH DAVIS. THEY DIDN'T NEED A BROADER DEFINITION BECAUSE THE HEARSAY IN BOTH CRAWFORD AND DAVIS. AND IN DAVIS THEY ALSO DID NOT ADOPT A REASONABLY LIKE -- >> CORRECT. BECAUSE DAVIS -- THEY HAD TO FURTHER -- WHAT THEY WERE DEALING WITH IN DAVIS WAS CLARIFYING THE PART OF CRAWFORD THAT SAID POLICE INTERROGATION WAS TESTIMONIAL. >> IN THIS CASE THE WE STARTED ULTIMATE OUT WITH THIS ISSUE OF WHETHER OR NOT LET'S ASSUME THERE'S A CONFRONTATION CLAUSE VIOLATION. IT'S IT HARMLESS YOU AGREE HARMLESS ERROR STILL ALIVES TO THESE. WHY IS THIS NOT HARMLESS ERROR? >> BECAUSE IN THIS CASE THE -- IT WAS A PRESEPLTIVE TEST DONE ON BOTH SUBSTANCES -- PRESUMPTIVE TEST DONE WITH SOMETHING LIKE A SWIMMING POOL TEST KIT AND THE JURY -- THE STATE WASN'T ABLE TO SHOW BEYOND A REASONABLE DOUBT THAT THIS MATERIAL WAS A -- DID NOT EFFECT THE VERDICT. THIS WENT -- THIS -- MY REPORT WENT TO THE JURY AND IN CLOSING ARGUMENT THE PROSECUTOR SAID THIS IS YOUR EVIDENCE. THIS IS YOUR EVIDENCE OF MARIJUANA. >> AND IN THIS CASE THE PERSON DOING THIS LAB TEST ALTHOUGH SHE WAS OUT OF STATE SHE WAS AVAILABLE. >> SHE WAS ABSOLUTELY AVAILABLE. SHE WAS READY AND WILLING AND ABLE TO SHOW UP THE NEXT MORING. >> THE STATE BEGAN ITS ARGUMENT TODAY WITH A DISCUSSION OF OFFICERS THAT WENT TO THE SCENE AND THE OFFICERS EXPERIENCE WITH DIFFERENT DRUGS AND BEING ABLE TO IDENTIFY DIFFERENT DRUGS THAT OFFICER DID TESTIFY AT TRIAL WHY DOESN'T THAT MAKE IT HARMLESS ERROR? >> BECAUSE IT DON'T SHOW -- IT'S SOMETHING THE JURY DID HAVE TO CONSIDER. BUT THEY ALSO -- IF THE LAB REPORT WAS CONSIDERED IN THE DEPARTMENT OF LAW ENS -- ENFORCEMENT WHICH IS THE SEAL OF THE STATE IT'S PRESUMED SCIENTIFICALLY. >> UNDER THAT TEST, THEN THERE WOULD NEVER BE HARMLESS ERROR. >> BUT THE SUPREME COURT HAS SAID THAT A CROSS VIOLATION IS SUBJECT TO HARMLESS ERROR AND HARMLESS ERROR ASSUMES THAT YOU VIOLATE A -- YOU VIOLATED CRAWFORD BUT THAT THERE'S OTHER EVIDENCE INTRODUCED THAT WOULD RENDER THAT HARMLESS. >> YOU ARE ESSENTIALLY COMPARING NOW THE IS 40 HOURS OF TRAINING OR WHATEVER THE AMOUNT OF TRAINING WAS. THIS IS SOMETHING THAT THE STATE ARGUED IN CLOSING ARGUMENTS THAT WAS -- YOU HAVE THIS LAB REPORT. YOU KNOW IN ADDITION IT'S SOMETHING THAT THE PROSECUTOR SPECIFICALLY ARGUED IN CLOSING ARGUMENT. >> LET ME ASK YOU A QUESTION. JUSTICE CANTERO MENTIONED DAVIS A COUPLE OF TIME. THE HOLDING IN THAT CASE IS THAT STATEMENTS ARE NONTESTIMONIAL WHEN MADE IN THE COURSE OF POLICE INTERROGATION. >> YES. >> UNDER CIRCUMSTANCES. >> YES. >> AND IT GOES ON AND IT DEFINES THEM AS TESTIMONIAL WHEN THE CIRCUMSTANCES IN THE CASE -- INDICATE THERE'S AN ONGOING A PRIMARY PURPOSE OF THE INTERROGATION IS TO ESTABLISH A PROVED PAST OFFENSE. >> RIGHT. >> IS THERE AN INTERROGATION? >> I WOULD SAY THERE IS IN THIS CASE. VERY SUBTLELY. IF YOU LOOK AT THE LAB RECORD IT'S FROM RANDY MEEKS WHO IS ESSENTIALLY TWO FDLE -- >> UNLIKE THE AFFIDAVIT THAT HE'S TALKING ABOUT THERE'S NO STATEMENT THAT THE -- THE POLICE OFFICER TOLD ME AND HE SAID -- AND HE DESCRIBED THE EVENTS AROUND THE COLLECTION OF THE EVIDENCE OR ANYTHING LIKE THAT. >> ESSENTIALLY WHAT THIS LAB REPORT IS THEY ARE SAYING FDLE LAB TELL ME WHAT THE UNIDENTIFIED SUBSTANCES ARE. THE LAB REPORT IS IN RESPONSE TO THAT QUESTION. IS MARIJUANA AND THIS IS COCAINE. >> SO IT'S AN OBJECTIVE ANALYSIS SCIENTIFIC ANALYSIS. YOU WOULD AGREE WITH THAT. >> I'M PRESUMING IT'S A SCIENTIFIC ANALYSIS. BUT FROM THIS REPORT YOU CAN'T TELL. YOU CAN'T TELL FROM THIS RECORD. >> THE PRACTICAL EFFECT OF THE RESULT THAT YOU ARE ADVOCATING IS THAT IN EVERY CASE THE PERSON -- YOU BRING THE PERSON THAT RAN THE LAB TEST INTO ERBGT -- COURT. >> CORRECT. >> EVERY CASE YOU BRING THE PERSON INTO COURT THAT RAN THE TEST. >> IF THE DEFENSE REQUIRE -- IF THE DEFENSE WANTS TO CONFRONT THE EVIDENCE, YES. BUT I'VE SEEN CASES WHERE THERE'S STIPULATIONS AND PEOPLE WORK THESE KIND OF THINGS OUT. >> I ASSUME IN THIS CASE SHE'S FROM VIRGINIA IS THERE A RULE THAT WOULD ALLOW A LOT OF DEPOSITION WHERE THE DEFENDANT FOR USE OF TRIAL? >> 3.190J ALLOWS THE PARTY WHO WANTS TO USE THE DEPOSITION OF SUBSTANTIVE EVIDENCE TO PROVIDE NOTICE. THE DEFENDANT HAS THE RIGHT TO BE THERE. I DON'T REMEMBER WHAT THE DEPOSITION RULE SAYS ABOUT WHERE THE DEPOSITION IS DONE. BUT I WOULD HAVE -- DON'T THINK THE SHERIFF WOULD LIKE TO HAVE AN INCARCERATED INMATE TAKEN TO VIRGINIA TO DO THE DEPOSITION. I KNOW IT'S TYPICALLY -- WE GO TO FDLE AND TAMPA OR ORLANDO TO DO THE DEPOSITION. >> AND TO BE FAIR TO THE DEFENDANT IN THIS CASE THIS IS NOT A SANDBAGGING EVENT BY THE DEFENSE COUNSEL. THE DEFENSE COUNSEL WAS -- WASN'T PLACED ON NOTICE THAT THIS WAS -- >> THERE'S NO ADVANCE NOTICE. HE SAID WHEN THEY ARE ARGUING. WHEN -- LOOK, THEY LISTED THE -- YOU KNOW MISS BEACON ON THE WITNESS LIST. I EXPECTED HER TO BE HERE. I HAD A SEPARATE CASE THIS MORNING WITH THE JUDGE FUENTE WHERE THEY WILL BRING IN SOMEONE FROM NORTH CAROLINA ON SOME TIME OF CONFRONTATION ISSUE. IT'S UNCLEAR EXACTLY WHAT IT IS. I WOULD SAY THE DEFENSE COUNSEL WOULD -- WAS ALMOST SANDBAGGED BY PUTTING THIS WITNESS NAME ON THE LIST. HE UNDERSTOOD AT SOME POINT THAT DAY IN THE TRIAL THAT SHE WAS NOT GOING TO BE THERE. ON AVAILABILITY ISSUE TYPICALLY THE CASES ARE HALF DAY OR DAY TRIALS. >> YES. >> WHAT DOES THE REPORT REFLECT -- IS THERE SOME ARGUMENT SHE COULD HAVE COME THE NEXT DAY. BUT THAT PRABG THE TICKCALLY CREATES TROUBLE IN THE TRIAL COURT WHEN THEY HAVE OTHER TRIALS SQUALLED. >> SHE COULD HAVE COME THE NEXT MORNING. >> MY QUESTION IS HOW LONG WAS THE TRIAL SCHEDULED OR WAS IT IT SCHEDULED TO GO INTO THE NEXT DAY? BECAUSE IF YOU CONTINUE TO THE NEXT DAY WAIT FOR THIS WITNESS, THE PRACTICAL IMPACT AS YOU TOLD JURORS THEY BE THERE FOR A DAY, ET CETERA. >> RIGHT. I BELIEVE -- I DON'T KNOW THE ANSWER TO THAT. BUT TYPICALLY THESE THINGS ARE -- LESS THAN A DAY. THESE TRIALS. AND IT'S MY POSITION THAT RESPONSE IF THE STATE -- STATE'S WITNESS IF IT WAS A FORMER STATE EMPLOYEE THE STATE HAD OPTIONS TO PRESERVE THE TESTIMONY IF THE TESTIMONY WILL BECOME UNAVAILABLE. >> GETTING BACK TO HARMLESS ERROR ISSUE. AREN'T THERE MANY CASES OR AT LEAST SOME CASES WHERE THE ONLY EVIDENCE THAT THE STATE PROVIDES AS TO WHAT THE NATURE OF THE SUBSTANCE IS THE OFFICERS TESTIMONY THAT FOUND THE SUBSTANCE THEY PUT THEIR SUBSTANCE TO THEIR MOUTH AND IN THEIR EXPERIENCE THIS WAS COCAINE OR THEY FOUND A SUBSTANCE THAT YOU KNOW LOOKED LIKE DRIED LEAVES AND IN THEIR EXPERIENCE IT WAS MARIJUANA. >> THERE'S MANY MORE OF THOSE CASES IN REGARD TO MARIJUANA. I PWHRAO EF IN THIS CASE THE OFFICER DID NOT -- BELIEVE IN THIS CASE THE OFFICER WASN'T SURE IT WAS COCAINE. >> HE CONDUCTED A PRESUMPTIVE TEST. IT'S MY POSITION THAT CRAWFORD SHOULD BE READ BROADLY JUST TO AVOID THE TRIAL BY AFFIDAVIT. AND WE DON'T KNOW WHAT TESTS WERE DONE IN THIS CASE. BUT JUST BECAUSE IT'S RELIABLE DOESN'T MEAN IT SHOULDN'T BE SUBJECT TO CROSS-EXAMINATION. THAT'S BASICALLY WHAT CRAWFORD DOES. SAME THING WITH CROSS-EXAMINATION WHEN SOMETHING IS RELIABLE IT'S LIKE GETTING RID YES OF THE JURY TRIAL FOR SOMEONE WHO IS GUILT. THE COURT HAS NO MORE QUESTIONS. >> THANK YOU VERY MUCH. REBUTTAL. WE'VE COME FULL CIRCLE NOW TO THE HARMLESS ERROR ISSUE. >> OBVIOUSLY THE STATE'S POSITION WAS IT WAS AN ER O. CERTAINLY THE HARMLESS ERROR ANALYSIS DOES APPLY. >> COULD YOU EXPLAIN WHAT THE TESTIMONY OF THE OFFICER AT TRIAL EITHER THE OFFICER THAT MADE THE ARREST OR SOMEBODY ON THE SCENE AS TO THE NATURE OF THE SUBSTANCE. >> THERE WERE TWO OFFICERS AT THE SCENE. OFFICER STEVENSON WAS THE OFFICER THAT ACTUALLY SAW THE SUBSTANCES IN THE RESPONDENTS PO SESSION. SHE TESTIFIED SHE WAS WITH THIS NARCOTICS DECISION -- DIVISION OF THE TAMPA POLICE DEPART. SHE HAD SIX OR EIGHT YEARS OF EXPERIENCE AS A POLICE OFFICER, THAT SHE HAD THIS 40-HOUR TRAINING AND ADDITIONAL SUBSEQUENT TRAINING AFTER THE 40-HOUR INITIAL TRAINING ON NARCOTICS IDENTIFICATION AND AT THE TIME OF THE ARREST IN THIS CASE SHE WAS WORKING A FOUR-DAY WORK WEEK AND SAW COCAINE AND MARIJUANA ON THE DAILY BASIS. AND SHE ALSO TESTIFIED THAT COCAINE AND MARIJUANA WERE A PART OF THE NARCOTIC IDENTIFICATION TRAINING THAT SHE HAD DONE. AND OFFICER TRAINED HIM I BELIEVE IS HIS NAME I'M PROBABLY NOT PRONOUNCING THAT CORRECTLY SIMILARLY TESTIFIED HE HAD 13 YEARS OF EXPERIENCE. BACK TO THE FIRST OFFICER THIS IS HER VISUAL DETERMINATION THAT THESE WERE. >> YES. YES. AND SHE THEN GAVE THE TWAPBSS TO OFFICER WHO DID THE PRESUMPTIVE TEST. HE TESTIFIED HE HAD 13 YEARS OF EXPERIENCE AND THE SAME KIND OF TRAINING THAT OFFICER STEVENSON DID WITH REFERENCE TO THE 40 HOURS OF THE NARCOTICS TRAINING AND THE ADDITIONAL DEA THINGS. >> BEFORE I FOREMOST -- FORGET THE CASE THAT WAS DISCUSSED BELIEVE WAS WILLIAMS v. 743-1149 AND IN THIS CASE ESSENTIALLY SAME -- THE FDLE ANALYST WAS ON MATERNITY LEAVE AND THE SUPERVISOR TESTIFIED AS TO SIMILAR THINGS THAT MR. SILVER DID IN THIS CASE. AND THE LAB REPORT. AND THE FIFTH DISTRICT AFFIRMED THAT RULING, OBVIOUSLY UNDER ROBERTS NOT UNDER CRAWFORD. >> DID THE SUPERVISOR IN THIS CASE TESTIFY THAT HE SIGNS OFF TO THE REPORT BEFORE YOU GO OUT? >> YES, HE DID. >> SO HE MAINTAINS CONTROL OVER EACH REPORT THAT GOES OUT. >> YES, HE DOES. IT'S A QUALITY CONTROL ASPECT OF HIS JOB IS THAT NOTHING GOES OUT OF THE FDLE WITH REFERENCE TO IDENTIFYING ANY SUBSTANCES UNTIL HE REVIEWS THE ENTIRE CASE FILE AND THE REPORT. IT'S CERTAINLY IF HE HAD ANY ISSUE I'M SURE HE WOULD HAVE SPOKEN WITH MIS -- MISS BEACON AT THE TEE. WITH REFERENCE TO WHAT ELSE WAS INTRODUCED THE ACTUAL EVIDENCE WAS INTRODUCED WITHOUT OBJECTION. THE OFFICER'S TESTIMONY WAS REFERENCED FOR THEIR TRAINING AND THE PRESUMPTIVE TEST WAS INTRODUCED WITHOUT OBJECTION. THEY STIPULATED TO THE EXPERTISE OF MR. SILVER SO PRESUMABLY THEY WOULD HAVE STIPULATED TO THE EXPERTISE OF MISS BEACON AS WELL. AND AT FIRST BEING SANDBAGGED I DON'T THINK THAT ARGUMENT CAN BE MADE. BECAUSE THE CONVINCE SAID IT WASN'T COCAINE AND CANNABIS. THE DEFENSE SAID IT WASN'T ME. I WASN'T THERE AND THE CANNABIS WAS IN MY POSSESSION WHEN I WAS BEING BOOKED IN WAS PLANTED ON MY OR I WAS UNAWARE OF IT. >> IS THIS HARMLESS ERROR ARGUMENT MADE TO THE DISTRICT COURT. >> YES. WHAT DID THE DISTRICT COURT SAY? >> THEY FOUND THAT THE INTRODUCTION OF THE LAB REPORT WAS SO HARMFUL IN ESSENCE THAT THE STATE COULDN'T PROVE THAT IT DIDN'T EFFECT THE JURY EYE -- JURY'S VERDICT AT ALL. BUT CERTAINLY THERE'S A VAST CASE LAW EXCUSE ME THAT TALKS ABOUT OFFICER BEING ABLE TO IDENTIFY SUBSTANCES AS NARCOTICS. >> THANK YOU VERY MUCH. YOU'VE EXHAUSTED YOUR TIME. THE COURT WILL TAKE IT'S MORNING RECESS. FOR 15 MINUTES. >>