Appeal from the Superior Court of the District of Columbia, (M-9303-05) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Submitted December 9, 2008
Before FERREN, BELSON, and NEBEKER, Senior Judges.
Appellant Rasheed Duvall asks us to reverse his conviction for possession of a controlled substance. D.C. Code § 48-904.01 (d) (2001). He contends that the government violated his constitutional rights under the Confrontation Clause of the Sixth Amendment by introducing a Drug Enforcement Administration (DEA) laboratory report in evidence against him without calling the chemist who prepared the report to testify in person, subject to cross-examination.*fn1 We agree -- and the government concedes -- that the Confrontation Clause was violated. Contrary to the government's position, however, we cannot conclude that the error was harmless beyond a reasonable doubt. Accordingly, we reverse and remand for a new trial.
On September 1, 2005, Metropolitan Police Department (MPD) Officer Charles Hoetzel was driving an unmarked police cruiser near the 200 block of Hamilton Street, N.W. He noticed a moving automobile with a cracked windshield and stopped it to investigate. The officer asked the driver, later identified as appellant Duvall, for his driver's license and registration information. Upon smelling the odor of marijuana emanating from Duvall's vehicle, he asked Duvall to step out and inquired whether there was anything illegal inside. Duvall got out of the car, told Officer Hoetzel that there was nothing inside, and invited the officer to "check the whole thing."
As Officer Hoetzel began his inspection, he noticed that the floor mat on the driver's side was "pushed up" against the front of the car. Lifting up the floor mat, he recovered a clear plastic bag containing a green weed substance that he suspected was marijuana. The officer testified at trial that after he had recovered the bag, Duvall spontaneously had exclaimed: "Oh, that bag, I forgot about it." By this point, other MPD officers had arrived, freeing Officer Hoetzel to conduct a field test on a portion of the green substance from the bag. The test yielded a positive color which, according to Hoetzel, indicated the presence of THC, the active ingredient in marijuana. Officer Hoetzel placed the bag in a heat seal for later submission for DEA analysis. He then arrested Duvall.
Officer Hoetzel was the government's only witness at trial.*fn2 In addition to Officer Hoetzel's testimony, the government introduced the heat seal and, over objection, the trial court also admitted the DEA-7 laboratory analysis, which indicated that the substance found inside Duvall's car was marijuana.*fn3 Counsel for Duvall objected that the DEA report was hearsay evidence, and that its admission in evidence would violate Duvall's Sixth Amendment rights. The trial court recognized that, as of the time of trial in November 2005, this court had not resolved whether a chemist's report constituted "testimonial" hearsay within the scope of Confrontation Clause protection. That said, the trial court overruled counsel's objection, concluding that because the existing statutory scheme permitted Duvall to subpoena the chemist if he wished to challenge the chemist's finding, the government's introduction of the DEA-7 without itself requiring the chemist to testify would not violate Duvall's Sixth Amendment rights.
On cross-examination, Officer Hoetzel testified that he had found no other drug paraphernalia, either in the vehicle or on appellant's person, and that he had not seen Duvall smoke or burn anything, or make any furtive gesture. Duvall then took the stand and testified that he had told Officer Hoetzel that he had had nothing illegal in his possession. Duvall also testified that, when confronted with the bag Officer Hoetzel had removed from under the vehicle's floor mat, Duvall had replied that it was not his. Duvall further testified that he had continued to deny ownership even after the officers pressed him several times to admit that the bag was his. Finally, according to Duvall, after the police had instructed him for the fourth time not to deny ownership -- and while restrained by handcuffs -- he had told the officers that "if there's any possibility of it being mine, it had to have been in there for months and months and months."
In closing arguments, the prosecution emphasized that the evidence confirmed that Duvall had constructively possessed a substance the DEA-7 showed to be a measurable amount of marijuana. Defense counsel emphasized that because Duvall had not known that the marijuana was in the vehicle, the prosecution could not prove a case of constructive possession. The trial court credited Officer Hoetzel's version of the facts, and found Duvall guilty of possessing a controlled substance. The court sentenced him to thirty days of incarceration, suspended, with one year of probation, and ordered him to complete sixty days of community service and to pay $50 to the Victims of Violent Crimes Compensation Fund.
After the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), this court concluded that a DEA drug-analysis report is "testimonial" evidence, and that "admission of the report into evidence without the presence of the chemist who prepared it violates the defendant's constitutional right to confrontation unless the defendant validly waives the chemist's presence at trial." Fields v. United States, 952 A.2d 859, 861 (D.C. 2008) (citing Howard v. United States, 929 A.2d 839, 841 (D.C. 2007), and Thomas v. United States, 914 A.2d 1, 5, 19 (2006)). Recently, the Supreme Court agreed, holding that forensic analyst certificates are indeed testimonial under Crawford. Melendez-Diaz v. Massachusetts, No. 07-591, 2009 WL 1789468, at *3--4 (U.S. June 25, 2009). Duvall argues, and the government concedes, that admitting the DEA-7 in the present case without the in-court testimony of the preparing chemist violated Duvall's rights under the Confrontation Clause of the Sixth Amendment. The parties further agree on the applicable standard of review, constitutional harmless error, which Duvall has preserved by objecting to admission of the chemist's report on constitutional grounds, see Callaham v. United States, 937 A.2d 141, 146 (D.C. 2007) (harmless error review preserved when appellant objected to introduction of DEA-7, pointing specifically to Sixth Amendment).*fn4
Under the heightened constitutional standard of review, the government bears the burden of demonstrating that the constitutional error was "harmless beyond a reasonable doubt," meaning that the verdict was "surely unattributable" to the erroneously admitted evidence. Fields, 952 A.2d at 866 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (internal quotation marks omitted)). "Under this standard, if a statement is improperly admitted, we will reverse where we find a 'reasonable possibility' that the statement contributed to the defendant's conviction." Callaham, 937 A.2d at 147 (quoting Williams v. United States, 858 A.2d 978, 981 (D.C. 2004) (internal citations omitted)); see also Scheble v. Florida, 405 U.S. 427, 432 (1972) (applying "reasonable possibility" standard in assessing harmless error as to confession admitted in violation of Sixth Amendment). We, therefore, turn to whether there was a reasonable possibility that the admission of the DEA laboratory report contributed to Duvall's conviction.
To prove Duvall's guilt of possession of a controlled substance, the government had to show that Duvall (I) possessed a controlled substance, and (ii) did so knowingly and intentionally. D.C. Code § 48-904.01 (d) (2001); Mitchell v. United States, 683 A.2d 111, 114 (D.C. 1996) (interpreting predecessor statute D.C. Code § 33-541 (d) (1993 Repl.)). While the government must show with respect to the second element only that the offender knew that he was in possession of a controlled substance, the first element requires the government to "show either by direct or circumstantial evidence that the substance in question contained a measurable amount of a controlled ...