IN THE INTEREST OF G. E. G., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fifth District Court of Appeal affirmed a child's delinquency adjudication for cannabis possession despite the State's failure to formally introduce the seized baggie into evidence. The court held that in drug cases where the substance is consumed during testing, the chemist's testimony is the primary evidence and the defendant's right to confront and cross-examine the chemist satisfies the Sixth Amendment, even without the physical evidence being formally admitted.
The court held that in drug possession cases where the substance is identifiable only by chemical analysis and is consumed during testing, the chemist's testimony constitutes the primary evidence of identity, not the substance itself. Since the chemist is the 'witness' protected by the Sixth Amendment and the appellant was able to cross-examine that witness, no confrontation right was violated by the failure to formally introduce the physical evidence.
[1] In a criminal case where the identity of a substance is established by chemical analysis, the testimony of the chemist constitutes the primary evidence, not the substance…
[2] The Confrontation Clause of the Sixth Amendment applies to witnesses, not to physical evidence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In criminal cases in which an essential element is the possession of a particular substance identifiable only by chemical analysis, such as drugs, as distinguished from cases involving objects that can be identified from common experience, such as burglary tools or firearms, the primary evidence of the identify of the chemical substance is not the substance itself but the testimony of the chemist.”
Establishes the core holding that in drug cases, expert testimony is the primary evidence, not the physical substance
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Join FLexlaw to unlock all legal intelligenceDuring an adjudicatory hearing on a delinquency charge for cannabis possession, the State produced a baggie seized from the appellant-child, marked it…
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COWART, Judge.
In an adjudicatory hearing on a delinquency charge that the appellant-child had violated the law prohibiting the possession of cannabis, the State produced the baggie taken from the appellant, had it marked as an exhibit for identification purposes only, elicited testimony from the State’s chemist that the contents was cannabis, but failed to formally introduce the baggie or contents into evidence.
Appellant relies for reversal on Alexander v. State, 288 So. 2d 538 (Fla.3d DCA 1974), a drug case where, reversing a conviction, the Third District Court of Appeal said:
The packets .. . having been marked for identification, but not introduced into evidence, defendant was denied thereby of a real opportunity to cross-examine the witnesses of the prosecution. For a mere formal proffer of an opportunity to cross-examine, where the circumstances as in the case at bar are such that the accused cannot effectively avail himself of it, is not a sufficient observance of the right.
288 So. 2d at 539.
In Smith v. State, 305 So. 2d 868 (Fla.3d DCA 1975), the same court did not follow the reasoning in Alexander and held that no right of confrontation or cross-examination was denied when the State introduced photographs of a stolen power saw but not the saw itself.
Also, since Alexander, drug convictions based only on the testimony of a chemist, where the drug was unavoidably consumed in the testing, have been upheld. State v. Atkins, 369 So. 2d 389 (Fla.2d DCA 1979); State v. Herrera, 365 So. 2d 399 (Fla.3d DCA 1978).
This is not a case where some right of an accused to examine tangible inculpatory evidence has been violated because of its willful, negligent, or unnecessary loss or destruction by the State. See Stipp v. State, 371 So. 2d 712 (Fla.4th DCA 1979), and cases cited therein.
In criminal cases in which an essential element is the possession of a particular substance identifiable only by chemical analysis, such as drugs, as distinguished from cases involving objects that can be identified from common experience, such as burglary tools or firearms, the primary evidence of the identify of the chemical substance is not the substance itself but the testimony of the chemist. The chemist, and not the substance, is the witness which the accused can confront and cross-examine. The confrontation provision of the sixth amendment of the Constitution of the United States is restricted to “witnesses” and does not include physical evidence. State v. Armstrong, 363 So. 2d 38 (Fla.2d DCA 1978). In this case, the cannabis in question was available and counsel for the accused did cross-examine the State’s chemist. Therefore, we decline to follow Alexander and the appellant’s delinquency adjudication and commitment is
AFFIRMED.
ORFINGER and SHARP, JJ., concur.
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G. E. G. v. State, 417 So. 2d 975 (Fla. 1982)…rict, affirmed, expressly declining to follow a sibling court’s holding that the failure to introduce the controlled substance in a drug possession case is a per se denial of a defendant’s right of confrontation.1 In the Interest of G.E.G. v. State, 389 So. 2d 325 (Fla. 5th DCA 1980). We have jurisdiction to resolve this conflict. Art. V, § 3(b)(3), Fla.Const. Our analysis must include an examination of the policy behind the introduction of physical evidence and the consequences of ruling either that physical…
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Causey Harrell v. State, 405 So. 2d 480 (Fla. 3d DCA 1981)…Alexander v. State, 288 So. 2d 538 (Fla. 3d DCA 1974), the court based its opinion on the belief the defendant was deprived of a constitutional right to confront witnesses and that the Alexander opinion has not been followed, see G. E. G. v. State, 389 So. 2d 325, 326 (Fla. 5th DCA 1980). In State v. Williams, 198 So. 2d 21 (Fla.1967), the Florida Supreme Court found that it could not review the issue of display of unadmitted evidence because such display was not fundamental error. The lower court case cited…
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State v. Ritter, 448 So. 2d 512 (Fla. 5th DCA 1984)…deliberate scheme to violate the defendants’ discovery rights were shown. See Stipp v. State, 371 So. 2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So. 2d 1203 (Fla.1980). . United States v. Herndon, 536 F. 2d 1027 (5th Cir.1976); G.E.G. v. State, 389 So. 2d 325 (Fla. 5th DCA 1980), aff’d, 417 So. 2d 975 (Fla.1982).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burns v. Seymour Dermer & K Audio & T. V., Inc., 371 So. 2d 712 (Fla. 4th DCA 1979)
- State v. Herrera, 365 So. 2d 399 (Fla. 3d DCA 1978)
- Smith v. State, 305 So. 2d 868 (Fla. 3d DCA 1975)
- Alexander v. State, 288 So. 2d 538 (Fla. 3d DCA 1974)
- State v. Armstrong, 363 So. 2d 38 (Fla. 2d DCA 1978)
- Rodgers v. Sadler, 369 So. 2d 389 (Fla. 2d DCA 1979)
- State v. Liberace Atkins, 369 So. 2d 389 (Fla. 2d DCA 1979)