Rel: 8/29/14




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1131136
                             ____________________

                           Ex parte Spencer Parker

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                            (In re: Spencer Parker

                                           v.

                               State of Alabama)

                  (Baldwin Circuit Court, CC-12-722;
                Court of Criminal Appeals, CR-12-1752)

BRYAN, Justice.

      WRIT DENIED. NO OPINION.
1131136

    Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise,

JJ., concur.

    Moore, C.J., dissents.




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1131136

MOORE, Chief Justice (dissenting).

    I dissent from the denial of the petition for a writ of

certiorari in this case because Spencer Parker was denied his

right of confrontation under the Sixth Amendment to the United

States Constitution.

    In an unpublished memorandum, the Court of Criminal

Appeals held that Parker did not preserve for review his Sixth

Amendment claim because his objection at trial was based on

the best-evidence rule and the rule against hearsay. Parker v.

State (No. CR-12-1752, June 6, 2014), ___ So. 3d ___ (Ala.

Crim. App. 2014) (table). During his trial for unlawful

possession of a controlled substance, Parker objected on three

separate occasions to the admission of the testimony of

Alabama Department of Forensic Sciences section chief Katrina

Hanks.    Hanks   supervised   Stephanie   Fisher,   who   actually

analyzed the evidence at issue and prepared the forensic drug

report the State intended to use against Parker. On the second

objection, Parker argued that he had "'absolutely no way to

cross-examine [Fisher] because she is not here ....'" Thus it

is apparent that Parker objected not only to the alleged

admission of hearsay evidence and to the court's alleged


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1131136

disregard of the best-evidence rule, but also to the denial of

his right to confront a witness against him. Therefore,

Parker's Sixth Amendment claim was preserved for review.

     The Court of Criminal Appeals further held that even if

Parker had preserved his Sixth Amendment claim, "[b]ecause

Hanks was a competent witness who provided live testimony and

was subject to cross-examination, we find that the admission

of   the   forensic   drug    report   did   not   violate     Parker's

confrontation rights." This holding is plainly contrary to the

Sixth   Amendment,    which   provides   that,     "in   all   criminal

prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him ...." Amend. VI,

U.S. Const. (emphasis added). Here, the witness against Parker

was Fisher, who prepared the forensic drug report. However

qualified Hanks may have been as an expert in drug chemistry,

she was not the one who prepared the report used to convict

Parker and therefore was not a witness against Parker with

regard to that testimony. See Ex parte Ware, [Ms. 1100963,

Jan. 17, 2014] ___ So. 3d ___, ___ (Ala. 2014) (Moore, C.J.,

concurring in part and dissenting in part) ("The Confrontation

Clause protects the accused's right to confront the witnesses


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1131136

against him, not the witnesses' supervisor or reviewer, or the

custodian of records.").

       Under the facts presented to us, it appears Parker has

been    denied   his   Sixth   Amendment   right   of   confrontation.

Accordingly, I respectfully dissent.




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