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Published by the Indiana Office of Court Services

McMurrar v. State, No. 49A02-0809-CR-868, __ N.E.2d __ (Ind. Ct. App., May 12, 2009)

May 22, 2009 Filed Under: Criminal Tagged With: Appeals, P. Riley

RILEY, J.
In support of his argument, McMurrar relies on Jackson v. State, 891 N.E.2d 657, 659 (Ind. Ct. App. 2008), trans. pending,1 where we found that the admission of a certificate of analysis or laboratory report used to prove an element of a charged crime constitutes a testimonial statement under Crawford. In Jackson, the person who performed the laboratory testing and prepared the certificate for the purpose of establishing an element of the charge did not testify at trial; instead, her supervisor testified as to whether, in his opinion, the testing had been properly done. Id. at 661. Because the State failed to prove that the individual who prepared the certificate or report was unavailable to testify at trial, we concluded that the admission of the certificate violated Jackson’s Sixth Amendment right to confrontation under Crawford. Id at 662.
Here, Patricia Bowen, a forensic scientist with the Indianapolis-Marion County Forensic Services Agency, performed the laboratory testing on some residue found on the paraphernalia for the purpose of showing that the substance was cocaine and to prove an element of the charge, i.e., that McMurrar intended to introduce the cocaine in his body. However, instead of Bowen, the State called Brenda Keller (Keller), the quality assurance manager with the Indianapolis-Marion County Forensic Services Agency. Keller’s testimony was limited to the contents of the report and the conclusions drawn therein; she was merely a sponsoring witness of the exhibit and did not perform the tests herself. The State did not allege, let alone prove, that Bowen was unavailable to testify. Pursuant to Jackson, we conclude that Keller’s testimony does not satisfy McMurrar’s right of confrontation under Crawford. As a result, the trial court abused its discretion by admitting State’s Exhibit 2.
KIRSCH, J., and MATHIAS, J., concur.

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