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01/20/2012 "See News Release 003 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA

No. 11-K-1280 STATE OF LOUISIANA V. DION P. SIMMONS

On Writ of Certiorari to the Fourth Circuit Court of Appeal

PER CURIAM: On October 27, 2009, New Orleans police officers arrested the defendant/respondent after observing him discard what a crime laboratory later determined were 14 individually wrapped rocks of cocaine. The state subsequently charged respondent by bill of information with possession of cocaine with intent to distribute in violation of La.R.S. 40:967(A)(2). On February 24, 2010, the state filed notice, pursuant to La.R.S. 15:501(A), of its intent to introduce the crime lab's certificate of analysis at respondent's forthcoming trial set for May 18, 2010, as prima facie evidence that the individually wrapped objects he discarded contained cocaine, a procedure authorized by La.R.S. 15:500. On the morning of May 18, 2010, just before jury selection was about to begin, respondent filed a written opposition to the state's notice. A transcript of the proceedings indicates that the trial court was at first inclined to accommodate the defense objection by summoning the criminalist to testify. However, when the state indicated that the witness worked for a crime lab located in St. Tammany Parish and was thus not immediately available, the court denied the defense objection as untimely. A jury

thereafter found respondent guilty as charged in a brief, one-day trial. The trial court sentenced him to 12 years imprisonment at hard labor to run concurrently with any other sentence he was then serving. On appeal, after first considering and rejecting respondent's assignment of error asserting that the state's evidence, including the crime lab report, was not sufficient to support the jury's verdict, the court of appeal addressed respondent's argument that introduction of the crime lab report, as opposed to presenting live testimony from the analyst who conducted the testing, violated his Sixth Amendment right to confront the witnesses against him. The Fourth Circuit agreed, pretermitted respondent's remaining assignment of error, reversed his conviction and sentence, and remanded the case for further proceedings. State v. Simmons, 10-1508 (La. App. 4th Cir. 5/18/11), 7 So.3d 525. In doing so, the court of appeal acknowledged that this Court, State v. Cunningham, 04-2200 (La. 6/13/05), 903 So.2d 1110, the First Circuit, State v. Beauchamp, 10-0451 (La. App. 1st Cir. 9/10/10), 49 So.3d 5, and the Second Circuit, State v. Dukes, 46,029 (La. App. 2nd Cir. 1/26/11), 57 So.3d 489, had reached the opposite view of whether the statutory procedure set forth in La.R.S. 15:500-501 raised substantial confrontation issues. The Fourth Circuit declined to follow the reasoning in Beauchamp and Dukes, and further declined to follow this Court's holding in Cunningham because our decision came well before the Supreme Court rendered the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ____, 129 S.Ct. 2527, 174 L.Ed.2d 319 (2009), which, in the court of appeal's view, invalidated this state's procedure as it existed at the time of respondent's trial. Simmons, 10-1508 at 14-16, 67 So.3d at 533-35. The state seeks review of the Fourth Circuit's decision in this Court. For the reasons that follow, we grant the state's application and reverse. 2

In common with many states, Louisiana law provides that, subject to the restrictions contained in La.R.S. 15:501, certificates of analysis issued by any criminalistics laboratory in the state "shall be received in evidence as prima facie proof of the facts shown thereon . . . ." La.R.S. 15:500. At the time of trial, La.R.S. 15:501(A) required a party to give notice at least 10 days in advance of trial if it intended to rely on a certificate of analysis by a criminalistics laboratory, as authorized by La.R.S. 15:499. The statute further provided that the opposing party had the right "to subpoena on cross-examination, the person who performed the examination or analysis of the evidence," and that "[i]f 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." La.R.S. 15:501(B)(1). In 2010, shortly after trial in the present case, the legislature's amendment of R.S. 15:501 went into effect to enlarge the period in which the party seeking to use the certificate of analysis must give notice (now 45 days), and to redraft the provisions of La.R.S. 15:501(B), which now requires, in lieu of a subpoena, a written "demand that the person making the examination or analysis testify," filed in court and served on the district attorney. If the demand is made within 30 days of the receipt of the state's notice of intent, "the certificate shall not constitute prima facie proof of the facts thereon as set forth in R.S. 15:500." 2010 La. Acts 693.1 The lynchpin of respondent's motion to exclude the crime lab certificate as evidence at trial was the Supreme Court's decision in Melendez-Diaz v. Massachusetts. In what the majority termed a "rather straightforward application" of the Court's prior decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Melendez-Diaz held that a state may not, over a
The 2010 act also eliminated former La.R.S. 15:501(B)(2), which required defense counsel or the defendant making the request for a subpoena to certify that "the attorney or the defendant intends in good faith to conduct the cross-examination."
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defendant's objections under the Confrontation Clause of the Sixth Amendment, introduce as substantive evidence a criminalist's certificate attesting to the fact the substances tested in the laboratory revealed the presence of contraband drugs (e.g., cocaine), unless the criminalist is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Melendez-Diaz, 557 U.S. at ____, 129 S.Ct. at 2532. Melendez-Diaz announced the holding in the context of a Massachusetts statute which permitted introduction of the crime lab certificates as "'prima facie evidence of the composition, quality, and the net weight of the narcotic analyzed," id., 557 U.S. at ____, 129 S.Ct. at 2531 (quoting Mass. Gen. Laws, ch. 111,

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