Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge.
1. Subject to three exceptions, a timely and specific objection for the admission of evidence is necessary to preserve an issue for appeal. The exceptions arise when (1) the newly asserted issue involves only a question of law founded on proven or admitted facts, and answering the legal question will resolve the case; (2) consideration of the issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) by considering the previously unasserted issue the judgment of the trial court may be upheld on appeal as being right but for the wrong reason.
2. In considering the constitutionality of a statute, courts presume the statute is constitutional and resolve all doubts in favor of its validity. In determining its constitutionality, it is a court's duty to uphold a statute rather than defeat it if there is any reasonable way to do so.
3. As announced in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), reliability is no longer the constitutional touchstone of a Confrontation Clause analysis under the Sixth Amendment to the United States Constitution. Instead of reliability, the analysis turns on whether the hearsay statement is testimonial. If the statement is testimonial, the statement is inadmissible unless the State proves that (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. A statement which is not testimonial does not implicate the Confrontation Clause and may be admitted if it satisfies a recognized hearsay exception.
4. It is inconsistent with a criminal defendant's right of confrontation to admit testimonial evidence based upon its reliability and trustworthiness when the defendant has no opportunity to confront the absent declarant.
5. Since the decision in State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007), the confrontation analysis of K.S.A. 22-3437 in State v. Crow, 266 Kan. 690, 974 P.2d 100 (1999), no longer applies.
6. The United States Supreme Court has provided three criteria for determining that a statement is testimonial in nature: (1) the primary purpose of the statement is to establish or prove a fact that is potentially relevant at a criminal prosecution; (2) the statement is similar to a statement a witness would make on the witness stand at trial or its functional equivalent, such as statements made in affidavits, prior testimony, or custodial interrogations; or (3) the statement was made to police during an investigation and not during an ongoing emergency.
7. K.S.A. 2006 Supp. 22-3437(3) restricts the objections a criminal defendant can assert to the admission of a lab report, requires the criminal defendant to assert an objection or waive the right of confrontation, and gives the district court the authority to evaluate the defendant's objections. In part, the statute provides:
"An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the ground for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined no later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate." K.S.A. 2006 Supp. 22-3437(3).
This portion of the statute undermines a criminal defendant's Sixth Amendment right of confrontation.
8. The United States Supreme Court and Kansas appellate courts disapprove of waivers of Sixth Amendment trial rights based on a silent record.
9. Kansas appellate courts may excise unconstitutional language from a statute only if the legislature would have intended the offending language be excised. If the appellate court can discern no such intent, it must nullify the statute.
10. Only the portion of K.S.A. 2006 Supp. 22-3437(3) cited in Syllabus ¶ 7 of this opinion offends a criminal defendant's confrontation rights and, therefore, is unconstitutional when applied to a defendant in a criminal case.
11. When a criminal defendant successfully challenges the constitutionality of a statute but does not challenge the sufficiency of the evidence, the appropriate remedy is to reverse the conviction and remand the case for retrial.
12. PIK instructions are recommended but not mandatory.
13. When a criminal defendant fails to object at trial to an instruction, the appellate court applies the clearly erroneous standard, under which the court will find clear error only if there was an error in the instruction and the court is firmly convinced that there is a real possibility the jury would have rendered a verdict more favorable to the defendant had the error not occurred.
14. A passing reference in the conclusion of an appellate brief is insufficient to raise an issue for an appellate court to consider.
The opinion of the court was delivered by: McANANY, J.
Before HILL, P.J., McANANY, J., and BRAZIL, S.J.
Michael Edward Laturner challenges his convictions for possession of methamphetamine and drug paraphernalia. He claims the trial court's reliance upon K.S.A. 2006 Supp. 22-3437 to admit the incriminating results of lab tests performed on substances found in his possession denied him the right under the Sixth Amendment to the United States Constitution to confront his accuser. Because of the testimonial nature of the lab report and the trial court's discretion under K.S.A. 2006 Supp. 22-3437(3) to admit it into evidence over the defendant's objection and without the testimony of the technician who prepared it, that portion of the statute violates the Sixth Amendment's Confrontation Clause when applied to the defendant in a criminal case. Therefore, we reverse Laturner's convictions and remand the case for a new trial.
Laturner was arrested and charged with possession of methamphetamine, possession of drug paraphernalia, and criminal threat. The State filed a pretrial notice of its intent to introduce into evidence a Kansas Bureau of Investigation (KBI) report. The report contained an analysis of the contents of four zip lock baggies hidden by Laturner but recovered by the authorities. The lab report concluded that three of the four baggies contained methamphetamine.
Laturner objected to the lab report's admission without the testimony of the forensic scientist who wrote it because the report was not clear as to which baggies tested positive for methamphetamine. He also objected because the certificate of analysis did not explain what test equipment was used. The court overruled Laturner's objection, and the report was received into evidence at trial without further objection from Laturner. The jury convicted ...