
NO. 4-97-0792

November 16, 1998



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

Plaintiff-Appellee,	)	Circuit Court of

v.	)	Sangamon County

DONALD E. McCLANAHAN,	)	No. 96CF547

Defendant-Appellant.	)	

)	Honorable

)	Jeanne E. Scott,

)	Judge Presiding.







JUSTICE GREEN delivered the opinion of the court:

Section 115-15 of the Code of Criminal Procedure of 1963 (Procedure Code) provides for the admissibility in evidence of a labora­to­ry report from the Depart­ment of State Police, Division of Forensic Servic­es and Identifi­ca­tion, in a criminal case concerning controlled substance violations if (1) certain certifi­ca­tions are made; (2) a copy of the report is timely served upon defense counsel; and (3) the defense failed to demand "the testimony of the person signing the report *** within 7 days from *** receipt of the report" (725 ILCS 5/115-15(c) (West 1996)).  The major question in this case is whether section 115-

15 vio­lates the confrontation clause of the sixth amendment to the United States Constitution incorporat­ed in the fourteenth amend­ment thereof (U.S. Const., amends. VI, XIV) and similar provi­sions of section 8 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §8).  We hold that no such viola­tion necess­arily occu­rs.

 		On April 30, 1997, following a jury trial in the circuit court of Sangamon County, defendant Donald E. McClanahan was convicted of unlawful possession of less than 15 grams of a substance containing cocaine.  (720 ILCS 570/402(c) (West 1996)).  He was subsequently sentenced to three years' imprisonment to run concurrently with a two-year federal sentence he was then serving for three counts of distribution of a substance containing cocaine.  The nature of the substance defendant was shown to possess was proved pursuant to section 115-15 of the Procedure Code by (1) a laboratory report certified in conformity thereto, and (2) proof of service eight months before trial of a proper copy of the laboratory report concerning the substance taken from defendant.  Defendant demanded production of the person signing the report, but that demand was not served upon the State until approxi­mately eight months after the report had been served upon the defense and shortly before trial.

On appeal, defendant maintains not only that the introduction of the laboratory report pursuant to section 115-15 of the Code created a confrontation clause violation but also a violation of due process.  Defendant also asserts he was denied a fair trial by the prosecutor's improper comments in closing arguments.  We affirm.

Section 115-15 of the Procedure Code provides in its entirety:

"(a)  In any criminal prosecution for a vio­lation of either the Cannabis Control Act or the Illinois Controlled Substances Act, a laboratory report from the Department of State Police, Division of Forensic Services and Identification, that is signed and sworn to by the person performing an analysis and that states (1) that the substance that is the basis of the alleged violation has been weighed and analyzed, and (2) the person's findings as to the contents, weight and iden­

tity of the substance, and (3) that it con­

tains any amount of a controlled substance or cannabis is prima facie evidence of the con­tents, identity and weight of the substance.  Attached to the report shall be a copy of a notarized state­ment by the signer of the report giving the name of the signer and stating (i) that he or she is an employee of the Department of State Police, Division of Forensic Services and Identification, (ii) the name and location of the laboratory where the analysis was per­formed, (iii) that per­

forming the analysis is a part of his or her regular duties, and (iv) that the signer is qualified by education, training and experi­

ence to perform the analy­sis.  The signer shall also allege that scien­tifically accept­

ed tests were performed with due caution and that the evi­dence was handled in accordance with estab­lished and accepted procedures while in the custody of the laboratory.

(b)  The State's Attorney shall serve a copy of the report on the attorney of re­cord for the accused, or on the accused if he or she has no attorney, before any proceeding in which the report is to be used against the accused other than at a preliminary hearing or grand jury hearing when the report may be used without having been previously served upon the accused.

(c)  The report shall not be prima facie evidence of the contents, identity, and weight of the substance if the accused or his or her attorney demands the testimony of the person signing the report by serving the demand upon the State's Attorney within 7 days from the accused or his or her attorney's receipt of the report."  725 ILCS 5/115-15 (West 1996).

The federal constitution provides that every accused is entitled "to be confronted with the witnesses against him."  U.S. Const., amend. VI.  The purpose of the confrontation clause is "to ensure the reliability of the evidence against a criminal defen­dant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact."  
Maryland v. Craig
, 497 U.S. 836, 845, 111 L. Ed. 2d 666, 678, 110 S. Ct. 3157, 3163 (1990).  This is accomplished by the combined effect of physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.  
Craig
, 497 U.S. at 846, 111 L. Ed. 2d at 678, 110 S. Ct. at 3163.  The confrontation clause of the present Illinois Constitution (Ill. Const. 1970, art. I, §8 (as amended November 8, 1994)) is very similar in language to that of the United States Constitution and conforms to the same princi­ples.  
People v. Dean
, 175 Ill. 2d 244, 254, 677 N.E.2d 947, 952 (1997).

The major thrust of defendant's argument, that submit­

ting the hearsay information in the laboratory report to the jury without foundation proof by the person conducting the testing was a violation of defendant's right to confront the witness, gives no consideration to the provision of section 115-15(2), which grants the defense the right to make a timely requirement for the testi­mony of the preparer of the report.  Rather, the defendant focuses on such cases as 
White v. Illinois
, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992), 
Idaho v. Wright
, 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990), 
United States v. Inadi
, 475 U.S. 387, 89 L. Ed. 2d 390, 106 S. Ct. 1121 (1986), and 
Ohio v. Roberts
, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980).  Defendant does not cite any case where, as here, a statutory provision existed, making the hearsay evidence offered by the State admissible only if the defense is given reasonable notice of the intent of the State to use the evidence and a reasonable time to require the testimony of the declarant or preparer of the report to be offered in evidence.  We are unawar­e of any such case.

We deem the situation here similar to that confronting the Supreme Court of Oregon in 
State v. Hancock
, 317 Or. 5, 854 P.2d 926 (1993) (citing statute in effect in December 1989).  There, an Oregon statute (see Or. Rev. Stat. §§475.23­5(­3), (4) (1995)) permit­ted the admission into evidence of a certi­fied copy of an analyt­i­cal report signed by a criminal­ist con­ducting the analysis and deemed it to be 
prima
 
facie
 evidence of the results of the analy­sis.  Unlike here, the statute in­volved did not permit the defendant to require produc­tion of the analyst but merely permit­ted the defense to subpoena the analyst without cost to the defense.  The 
Hancock
 court deemed the statutory scheme to be similar to a procedure whereby the State would ask the defense if the report could be admitted into evidence without the pres­ence of the preparer, but if the defense wanted the preparer present, the defense could require the testimony of the preparer without cost to the defense.  
Hancock
, 317 Or. at 11, 854 P.2d at 929.  Section 115-15 is more reasonable than the Oregon statute because 115-15 requires the State to actually present the preparer on timely demand.

Defendant maintains that even if he could be denied the right to compel the production of the preparer of the laboratory report by having waived his rights, the waiver would have to be voluntary on his part and not the result of failure of his counsel to respond.  He attempts to draw analogy between the situa­tion here and that giving rise to our decision in 
In re Perona
, 294 Ill. App. 3d 755, 690 N.E.2d 1058 (1998).  There, a respondent was recommitted to a mental health center after a hearing from which he had absented himself.  That trial court proceeded pursuant to section 3-806(b) of the Mental Health and Developmental Disabili­ties Code, which permitted the court to proceed when the responde­nt's attorney advised the court that "[the respon­dent] refused to attend."  See 405 ILCS 5/3-806(b) (West 1996).

In 
Perona
, this court held the foregoing provision in regard to proceeding in the absence of a respondent did not faci­

ally deprive defendant of procedural due process.  We stated:

"Deciding whether a statutory pro­ce­dure comports with procedural due process involves a three-part analysis:  first, we ask whether there exists a liberty or proper­ty interest that has been interfered with by the state; second, we examine the risk of an erroneous deprivation of such an interest through pro­

cedures already in place, while considering the value of additional safe­guards; and third, we examine the effect the administra­

tive and monetary burdens of addi­tional pro­

cedures would have on the state's interest.  
Mathews v. Eldridge
, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903 (1976); 
East St. Louis Federa­tion
 [
of Teach­ers, Lo­cal 1220 v. East St. Louis School District No. 189 Financial Over­sight Panel
], 178 Ill. 2d [39­9,] 415-16, 687 N.E.2d [1050,] 1060 [(1997)].

It has long been recognized that proce­

dural due process guarantees a respondent the right to be present at his hearing in order to protect his liberty interest.  See 
Specht v. Patterson
, 386 U.S. 605, 610, 18 L. Ed. 326, 330, 87 S. Ct. 1209, 1212 (1967).  How­

ever, respondents may waive their consti­

tutional rights.  
People v. Johnson
, 75 Ill. 2d 180, 187, 387 N.E.2d 688, 691 (1979).  A waiver of constitutional rights must be not only a voluntary act, but also a knowing, intelligent act done with sufficient aware­

ness of the relevant circum­stances and likely consequences.  
Johnson
, 75 Ill. 2d at 187, 387 N.E.2d at 691, quoting 
Brady v. United States
, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1469 (1970)."  
Perona
, 294 Ill. App. 3d at 762-63, 690 N.E.2d at 1064.

One aspect of our holding in 
Perona
 was that the respondent had made a knowing waiver of his right to be pres­ent.  Defendant contends that here, he did not make a knowing waiver of his constitutional right to confront the preparer of the report and was thus deprived of due process.  However, the right to be present, which was involved in 
Perona
, was a fundamental right that counsel could not waive for the respondent or forfeit on his behalf.  
People v. Steenbergen
, 31 Ill. 2d 615, 618, 203 N.E.2d 404, 406 (1964); 
People v. Mallett
, 30 Ill. 2d 136, 142, 195 N.E.2d 687, 690 (1964).

Here, defendant's constitutional right of confrontation was involved, but no case has been called to our attention that would prevent defense counsel from waiving a defendan­t's right to examine the preparer of a document containing hearsay information or by his conduct forfeit that right.  To hold other­wise would make the preparation for the trial of criminal cases more diffi­

cult.

Here, the laboratory report was served on the defense at the time the State gave its required discovery.  Defense counsel did not contend he was unaware of the furnishing of the document or its signature.  The record indicates he had had the document and waited until three days before trial to make the demand for the presence of the preparer.  This was too late, and the circuit court properly admitted the report into evidence.

In holding section 115-15 of the Procedure Code was not applied here in such a manner as to violate defendant's right of confrontation or due process, we recognize, as did the Supreme Court of Oregon in 
Hancock
, 307 Or. 2d at 11, 654 P.2d at 929, that very often the preparer of a laboratory report is eventually excused from testifying.  Section 115-15 aids and promotes an earlier decision in that regard.  Moreover, an accused has a right to put on relevant evidence favorable to him, but he can lose that right by failure to give reasonable required discovery in this regard.  
People v. Johnson
, 262 Ill. App. 3d 781, 787-88, 635 N.E.2d 827, 831-32 (1994); 
People v. White
, 257 Ill. App. 3d 405, 413, 628 N.E.2d 1102, 1108 (1993).  By the same logic, a defend­an­t's right of con­frontation can be limited by a require­

ment to take reason­able action such as that required here.

Finally, the two aspects of defendant's contention of revers­ible error arising from the State's closing argument are (1) the prosecutor's statement that a defense witness had a criminal conviction, and (2) defendant's assertion the State's argument was racist.  Defendant contends these alleged errors occurred in the course of a trial where the evidence was closely balanced.  We find no reversible error.

The defense witness in question did have a criminal conviction in 1978, which was inadmissible for impeachment purpos­es as it was stale (
People v. Montgomery
, 47 Ill. 2d 510, 516-17, 268 N.E.2d 695, 698-99 (1971)).  The court sustained the objection to the State's refer­ence to this conviction, and the jury was in­struct­ed that opening state­ments and closing arguments were not evi­dence.  Defendant con­tends that because the evidence was close, this reference to the conviction of the witness was reversible error.  We do not agree that the evidence was close but, even if it were, no revers­ible error occurred as the court had sustained the objec­tion and properly instructed the jury.

The theory of the defense was that the controlled sub­

stance had been placed on the defendant by police officers to create an excuse for beatings officers had imposed.  The prosec­

tor then contended this was not "L.A." and that this situation was differ­ent from the highly publicized Rodney King episode where an arrestee was beaten by police officers.  We do not construe the lengthy prosecution argument to be racist, and no objection was raised.  Thus, the issue has been forfeited absent plain error.  
People v. Keene
, 169 Ill. 2d 1, 23, 660 N.E.2d 901, 912 (1995).  Both sides mentioned race, and defendant had testi­

fied the offi­cers used racial slurs while beating him.  Clearly, no plain error arose.

Accordingly, for the reasons we have stated, we affirm the conviction and sentence.

Affirmed.

McCULLOUGH, J., concurs.

STEIGMANN, J., specially concurs.

JUSTICE STEIGMANN, specially concurring:

Although I agree fully with the court's opinion, I write specially only to caution the State about the methods it should use when complying with section 115-15 of the Procedure Code.  

That section's provisions authorize the admis­sion of a laboratory report in lieu of the live testimo­ny of the report's  author, only if (1) the State's Attor­ney serves a copy of the report upon defense coun­sel; and (2) defense counsel fails to object to the report's admissibility of 
prima
 
fa­cie
 evidence of its contents within seven days of receiving it.  If either (1) defense counsel timely ob­jects, or (2) the State fails to serve the report upon defense counsel as section 115-15 requires, then the State will have to call the laboratory analyst who wrote the report to testify regarding the report's contents.  

I envision a problem arising in a situation where the State moves during trial to admit the labora­to­ry report on the ground that defense counsel had failed to timely object to the report's use, only to have defense counsel assert that she never received a copy of the report in the first place.  To further compli­cate matters, both the prose­cutor and defense counsel might be making their respective claims in good faith because the prose­cutor really be­lieves he sent a copy of the labora­tory report to defense counsel, while defense counsel really believes that she never received it. 

Regrettably, discovery problems of this sort arise with some frequency during felony trials.  However, what distin­guishes this particular discovery issue from the vast majority is that this one directly implicates a constitutional right--namely, the defendant's right to confront and cross-examine one of the State's witnesses.  I agree that impos­ing a burden upon defense counsel to affir­matively state her disagree­ment with a pro­posed stipulation regarding the admissi­bility of a laborato­ry report passes consti­tu­tional muster in this case.  However, the State should bear a greater burden if a discovery dispute arises concerning whether defense counsel ever received the laboratory report than it might other­wise bear regarding more "normal" discovery disputes.   

The good news is that the State can easily meet this heightened burden with regard to labora­tory reports in either of the follow­ing ways.  First, the State's discov­ery response containing the laboratory report at issue (and, perhaps, other discovery infor­mation as well) should be prepared in triplicate, with each of the three original copies then filed marked by the circuit clerk.  One of the tripli­cate originals should remain in the court file, one should remain in the prosecutor's file, and the third should be provided to defense counsel.  Under these circum­stanc­es, if defense counsel later claims that she never re­

ceived a copy of the laboratory report, the trial court could easily resolve this discovery dispute both by looking in the court file and by asking the prose­cu­tor for his copy of the discov­ery re­sponse at issue.  If the court finds the laborato­ry report at issue within each, the inescap­able conclu­sion would be that defense coun­sel, upon receiving the discovery response from the State, must have unstapled the documents and thereafter simply lost or mis­placed the report.  

The second, but perhaps less efficient, method of providing a record of compliance with section 115-15(b) of the Procedure Code is for the prosecutor to make a record of pre­

senting the laboratory report in open court to defense counsel at some pretri­al proceeding in the case.  The difficulty with this procedure, however, is that in those counties which are able to administer their felony docket efficiently enough to minimize the need for multiple pretrial hearings, a timely opportunity might not present itself for the State to furnish the labora­to­ry report to defense counsel in this fashion.

Utiliz­ing one of the suggested methods would be sound prac­tice for the State regard­ing 
any
 discov­ery informa­tion it pro­vides defen­dant pursu­ant to Supreme Court Rule 412 (134 Ill. 2d R. 412).  If the State fails to comply with either of the forego­ing methods, then it should be on notice that it will likely lose any discovery dispute that arises regarding whether defense counsel received notice from the State, as required by section 115-15(b) of the Procedure Code.  

