The opinion of the court was delivered by: Justice Green
Appeal from Circuit Court of Sangamon County No. 96CF547
Honorable Jeanne E. Scott, Judge Presiding.
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 approxi- mately 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 identity of the substance, and (3) that it contains any amount of a controlled substance or cannabis is prima facie evidence of the con- tents, 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 performing the analysis is a part of his or her regular duties, and (iv) that the signer is qualified by education, training and experience to perform the analysis. The signer shall also allege that scientifically accepted 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 submitting 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 in- volved 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 facially deprive defendant ...