Surrogate witness drug testimony violated the Sixth Amendment

People v. Ogaz (2020) 53 Cal.App.5th 280

Ignacio Ogaz was convicted and sentenced to 68 months in prison for possession of methamphetamine and heroin for sale. At Ogaz’s trial, the prosecution did not produce the forensic scientist, Michelle Stevens, who analyzed and identified the substances as methamphetamine and heroin. Rather, the prosecution presented the testimony of Stevens’ laboratory supervisor, Thomas Dickan, who reviewed Stevens’ notes, and conveyed the non-testifying analyst’s opinions to the jury. On appeal, Ogaz argued that the admission of both Stevens’ laboratory report and Dickan’s testimony violated his confrontation rights. Ogaz, supra, at 2-3. The Court of Appeal agreed.

After discussing United States Supreme Court Confrontation Clause precedent, as well as several California cases that involved confrontation rights, the Court of Appeal found that the laboratory report was sufficiently formal, stating that “[i]t cannot be gainsaid that her report served as the functional equivalent of live, in-court testimony.” Id. at 7. The court also held that the evidence showed the primary purpose of Stevens’ laboratory report was for criminal prosecution. The court wrote:

“Stevens played an important role with respect to the charges set forth in that charging document. Acting as an investigative arm of the prosecution, her responsibility was to determine whether the substances seized from appellant contained contraband, so as to support the charges in the complaint. (Citation.) And, at trial, her report was admitted to prove that they did. Considered as a whole, the circumstances surrounding the report’s preparation convince us its primary purpose pertained to a criminal prosecution.” Ibid.

The Attorney General argued that the surrogate witness was still sufficient to protect the defendant’s confrontation rights. The Court of Appeal disagreed.

“This argument overlooks the fact the conclusions set forth in Stevens’ report were based on her subjective impressions of the evidence she examined. In conducting the microcrystal test, Stevens had to determine whether the substances took on the appearance of methamphetamine crystals after being mixed with a particular reagent. And during the gas chromatograph tests, she had to determine whether subjecting the substances to an electron beam and infrared light produced effects that indicated the presence of heroin. These determinations required subjective analysis and comparison on Stevens’ behalf. Dickan could not be effectively cross-examined as to what Stevens saw or how she interpreted the information her testing produced.” Id. at 8.

The court also noted that this was not a case in which the expert testified as to his own independent conclusions based on the data produced from the analysis. Here, the witness merely conveyed the opinions of another analyst, who did not testify. This was contrary to the mandates of the Sixth Amendment’s Confrontation Clause. The court held that “[s]ince the reliability of [Dickan’s] testimony was dependent on the reliability of Stevens’ testing, about which he lacked personal knowledge, he was not a suitable substitute for Stevens at trial.” Id. at 9. The court determined that Ogaz’s confrontation rights were violated by the introduction of Stevens’ report and Dickan’s testimony.

The Attorney General argued that the error was harmless because the officer’s testimony also indicated the identity of the substances. The court acknowledged that the officer’s testimony may have been sufficient to convict, but found significant the prosecution’s reliance in closing argument on the unconstitutionally admitted evidence to secure a conviction. The scientific nature of the violative evidence also convinced the court that it was compelling. Under those circumstances, the court could not conclude that “the jury’s verdict was surely unattributable to the evidence that resulted from the violation.” Id. at 10. The judgment was reversed.

About the Author

Lara J. Gressley

Lara Gressley

Lara Gressley has been an attorney for over two decades. She focuses her practice on criminal defense, DUI defense, and writs and appeals in state and federal court, and has worked on cases before the United States Supreme Court. Lara also lectures lawyers across California on various criminal defense topics.

contact us to start building your defense

We understand that being accused of a crime is one of the most challenging times of your life. Rely on us to advocate for your rights and to give you the defense you deserve.