FILED: November 25, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ARLEY JAY HAMILTON,

Defendant-Appellant.

Umatilla County Circuit Court
CFH050163
A133896

Jeffrey M. Wallace, Judge.

Submitted on October 26, 2009.

Peter Gartlan, Chief Defender, Appellate Division, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General, filed the brief for respondent.

Before Rosenblum, Presiding Judge, and Brewer, Chief Judge, and Deits, Senior Judge.

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant appeals from a judgment of conviction for unlawful possession of a controlled substance, former ORS 475.992 (2003), renumbered as ORS 475.840 (2005).  He asserts that the trial court erred in (1) denying his motion to suppress a laboratory report without the testimony of the criminalist who authored the report in violation of his state and federal confrontation rights, and (2) denying his motion to cross-examine a police officer about that officer's termination from another police department for falsifying police reports in violation of the Oregon Evidence Code and his state and federal confrontation rights.

 With respect to defendant's first assignment of error, the state concedes that the laboratory report identifying the substance in defendant's possession was erroneously admitted over defendant's objection and that the case should be remanded.  We agree that the trial court erred in admitting the laboratory report and that the error was not harmless.  See Melindez-Diaz v. Massachussets, ___ US ___, 129 S Ct 2527, 174 L Ed 2d 314 (2009) (holding that affidavits reporting the results of forensic analysis are testimonial and thus subject to Sixth Amendment requirements).  Accordingly, we reverse and remand.  Given that disposition, and in view of the fact that the record may develop differently on remand, we do not address defendant's second assignment of error.

Reversed and remanded.


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