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Zoerner v. State6/18/1998
AE, JUSTICE, DISSENTING:
. While the majority's decision correctly reverses the case, it does not provide proper guidance for the trial court to follow on remand. I disagree with the finding of admissibility of the double hearsay evidence given by the investigating officer with regard to the results of the lab report on Zoerner's broken windshield as well as with the introduction of the intoxilyzer calibration certificates. Because of the unresolved confrontation clause problems in these issues, I respectfully Dissent.
. The investigating officer testified that he received a lab report indicating that glass from Zoerner's broken windshield contained matter of human origin. The report was not entered into evidence and the technician who prepared the report did not testify. Zoerner raised a timely sixth amendment confrontation clause objection to the officer's hearsay testimony. Gossett v. State, 660 So. 2d 1285, 1296 (Miss. 1995). See also Spears v. State, 241 So. 2d 148, 149 (Miss. 1970)(reversible error where doctor's testimony relied on lab report and technicians who prepared report were not offered as witnesses).
. As Justice Banks points out in his separate opinion, a party cannot "open the door" to the admission of hearsay evidence. Murphy v. State, 453 So. 2d 1290, 1294 (Miss. 1984). Thus, the majority is incorrect in its Conclusion that the officer's testimony about the lab report was admissible because Zoerner opened the door by his testimony on redirect examination. As this Court explained in Murphy,
There is no hearsay exception based upon the scope of examination. You may allow its admission by failing to object to it, but you simply cannot "open the door" to hearsay. Hearsay is incompetent evidence. You may open the door for collateral, irrelevant, or otherwise damaging evidence to come in on cross-examination, Reddix v. State, 381 So. 2d 999 (Miss. 1980); Jefferson v. State, 386 So. 2d 200 (Miss. 1980); Sanders v. State, 219 So. 2d 913 (Miss. 1969), but Mississippi recognizes no rule of law that allows double hearsay to be brought in through this open door.
Id. at 1294. To now say that admission of the hearsay testimony was well with the scope of rebuttal is not consistent with our case law or our Rules of Evidence.
. I further disagree with the majority's finding that Zoerner's assertion that his right to confrontation was violated by the introduction of intoxilyzer calibration certificates was "squarely rejected" by this Court's opinion in McIlwain v. State, 700 So. 2d 586 (Miss. 1997). The majority misreads McIlwain. The case deals only with what is required to lay a proper evidentiary foundation for admission of intoxilyzer calibration certificates, not whether admission of calibration certificates without the testimony of the calibrating officer passes constitutional muster. Nowhere in the McIlwain was the confrontation clause issue even discussed.
. Because the majority makes such broad evidentiary rulings without any regard for the defendant's confrontation clause rights, I respectfully Dissent.
SULLIVAN, P.J., JOINS THIS OPINION.
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