Opinion
No. COA10-989
Filed 21 June 2011 This case not for publication
Appeal by Defendant from judgment entered 16 February 2010 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 25 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Scott A. Conklin, for the State. Charlotte Gail Blake, for Defendant.
Forsyth County No. 08-CRS-53477.
Defendant, Dewan Kenneth Brent, appeals from his conviction for felony possession of cocaine where Defendant argues that the trial court erroneously denied his right to confront the witnesses presented against him at trial. Because careful review of the record reveals that Defendant was deprived of his Sixth Amendment rights to confrontation, we conclude that he is entitled to a new trial.
Defendant's criminal trial began on 15 February 2010. The State's evidence tended to show that on 2 April 2008, Corporal Knight of the Winston-Salem Police Department detained Defendant for trespassing upon the grounds of the Johnson Square Apartment complex. Corporal Knight explained that Defendant was seated upon a street curb while he attempted to determine whether Defendant had any outstanding warrants. As he returned from his vehicle, Corporal Knight saw Defendant's left hand drop to his side and an "off white rocklike object actually roll from his left pants area where his hand was at." Corporal Knight secured the unknown object and placed Defendant under arrest for trespassing.
Following his arrest, Defendant was transported to the Forsyth County magistrate's office. There, Defendant received Miranda warnings and signed a document indicating that he understood his rights and that he wished to speak with the interviewing officers. During his interview, Defendant informed officers that the seized substance was cocaine. Defendant explained that when he was detained, he intended to put the cocaine in his shoe and inadvertently placed it into the cuff of his pants leg. On 12 May 2008, Defendant was indicted for the offenses of felony possession of cocaine, second degree trespass, and for attaining habitual felon status.
The State also introduced Jennifer Lindley ("Agent Lindley") of the North Carolina State Bureau of Investigation ("SBI") as an expert in the field of forensic chemistry. Agent Lindley explained that while she did not personally examine the substances seized from Defendant on 2 April 2008, she did examine the results of lab tests conducted by Kathryn Kruse ("Agent Kruse"). Agent Lindley opined that based upon her review of the report generated by Agent Kruse, the substance seized from Defendant on 2 April 2008, was "cocaine base."
At the time that she conducted the lab tests, Agent Kruse was also a member of the SBI, but she had retired before Defendant's trial began.
Defendant objected to Agent Lindley's testimony arguing that because the Agent that actually analyzed the seized substances did not testify at trial, he was deprived of his Sixth Amendment right to confront the witnesses presented against him. The trial court overruled Defendant's objection and permitted Agent Lindley's testimony. Following the trial, the jury found Defendant guilty of felony possession of cocaine and attaining habitual felon status. Defendant was acquitted of the second degree trespassing charge. Defendant gave oral notice of his intent to appeal.
In his sole argument on appeal, Defendant contends that the trial court erroneously violated his Constitutional right to confront the witness presented against him at trial. We agree.
"The Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant." State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citing Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004)). In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that the affidavits of chemical analysts certifying that a substance was cocaine were "testimonial" in nature and the analysts were "witnesses" for the purposes of the Sixth Amendment. __ U.S. __, __, 174 L. Ed. 2d 314, 321-22 (2009). Accordingly, "[a]bsent a showing that the analysts were unavailable to testify at trial and that [a] petitioner had a prior opportunity to cross-examine them, petitioner[s] [are] entitled to be confronted with the analysts at trial." Melendez-Diaz v. Massachusetts, __ U.S. at __ 174 L. Ed. 2d at 322 (internal quotation marks and citations omitted).
Our appellate Courts have applied the concepts established in Melendez-Diaz decision in several North Carolina cases. In Locklear, the State sought to introduce into evidence the forensic analyses of a forensic pathologist and a forensic dentist who did not testify at the defendant's trial. Locklear, 363 N.C. at 452, 681 S.E.2d at 305. The State utilized another expert that did not conduct the forensic analyses to testify as to the content of the forensic reports. Id. at 451, 681 S.E.2d at 304. The trial court admitted the forensic reports along with the testimony of the State's expert witness. Id. On appeal, the Supreme Court of North Carolina held that while admission of the affidavits violated the defendant's Sixth Amendment right to confront the witness presented against him, the error was non-prejudicial. Id. Our Supreme Court reasoned that "[t]he State failed to show that either witness was unavailable to testify or that defendant had been given a prior opportunity to cross examine them." Id. at 452, 681 S.E.2d at 305.
Later, in State v. Mobley, a defendant argued that the trial court's admission of "an analyst at the Charlotte-Mecklenburg Police Crime Lab regarding DNA tests performed by other analysts," violated his Sixth Amendment right to confront witnesses presented against him at trial. 200 N.C. App. 570, 572, 684 S.E.2d 508, 509 (2009). On review, our Court held that testimony provided by the analyst present at trial did not violate the defendant's Sixth Amendment right to confront the witnesses presented against him at trial. Id. at 575-76, 684 S.E.2d at 512. Our Court reasoned that the analyst present at trial did "not [testify] just to the results of other experts' tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts' tests, and her own expert opinion based on a comparison of the original data." Id. at 574, 684 S.E.2d at 511.
In the recent case of State v. Brewington, __ N.C. App. __, 693 S.E.2d 182 (2010), our Court articulated a four part test to interpret the application of the rules established in Melendez-Diaz and Locklear. Our Court explained that courts conducting an inquiry in this area must:
(1) determine whether the document at issue is testimonial; (2) if the document is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant; (3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert's report or analysis; and (4) if the testifying expert summarized another non-testifying expert's report or analysis, determine whether the admission of the document through another testifying expert is reversible error.
Id. at __, 693 S.E.2d at 189.
In this case, the lab report reviewed by Agent Lindley was testimonial. See id. (holding that a lab report which provided the results of a lab technician's testing of an alleged controlled substance were testimonial in nature); see also, State v. Williams, __ N.C. App. __, __, 702 S.E.2d 233, 236 (2010) (holding that a lab report which indicated that a tested substance could be chemically defined as cocaine, was testimonial). Additionally, the State fails to set forth any evidence demonstrating that Defendant had a previous opportunity to cross-examine Agent Kruse.
Because Agent Kruse's report was inadmissible testimonial evidence, we now turn to the third prong of the Brewington syllogism. We are required to consider whether Agent Kruse's testimony is reflective of her own expert opinion, or is a mere summary of a lab report based on tests performed by another analyst. See State v. Brennan, __ N.C. App. __, __, 692 S.E.2d 427, 430 (2010). Acknowledging the importance of this query, our Court explained that "the purpose of requiring the analysts themselves [to] testify is so that their honesty, competence, and the care with which they conducted the tests in question could be exposed to `testing in the crucible of cross-examination.'" Brewington, __ N.C. App. at __, 693 S.E.2d at 189 (quoting Melendez-Diaz, __ U.S. at __, 174 L. Ed. 2d at 326). Merely allowing a testifying expert witness to restate the findings of a non-testifying analyst would only serve to circumvent the protections afforded to defendants by the Confrontation Clause. Id.
In several cases which preceded this Court's holding in Brewington, we considered whether testimony provided by an expert witness was a mere summation of another analyst's lab report. In State v. Hough, __ N.C. App. __, __, 690 S.E.2d 285, 290 (2010), we held that there was no error, in the trial court's admission of expert testimony. There, an expert witness opined that substances seized during a police investigation were cocaine and marijuana, respectively. Id. Though the testifying witness did not conduct an analysis of the seized substances, she did conduct a "peer review" of the data generated by another analyst's testing of the substances. Id. The testifying witness explained "peer review" consisted of examining the lab report for errors in analysis. Id. This Court cautioned that while acceptable in this case, not "every `peer review' will suffice to establish that the testifying expert is testifying to his or her expert opinion. . . ." Id. at __, 690 S.E.2d at 291.
In State v. Brennan, __ N.C. App. __, __, 692 S.E.2d 427, 431 (2010), our Court granted a defendant a new trial where the trial court erroneously allowed an expert witness to opine that a seized substance was cocaine base. The expert witness based her conclusion upon a lab report generated by an analyst that was unavailable to testify at trial. Id. at __, 692 S.E.2d at 430. Following the defendant's appeal, this Court concluded that the expert witness "was merely reporting the results of other experts" and her review of the lab results "consisted entirely of testifying in accordance with what the underlying report indicated." Id. at __, 692 S.E.2d at 431. There was no evidence that the expert performed any independent review to confirm the results of the report generated by the non-testifying analyst. Id.
In Brewington, we held that the trial court erred in permitting a witness to provide expert testimony based upon a lab report created by a non-testifying analyst. __ N.C. App. at __, 693 S.E.2d at 192. In reaching this conclusion, our Court relied upon prior North Carolina authority including Mobley, Hough, and Brennan. We reasoned that:
[i]t is clear from the testimony of Special Agent Schell that she had no part in conducting any testing of the substance, nor did she conduct any independent analysis of the substance. She merely reviewed the reported findings of Agent Gregory, and testified that if Agent Gregory followed procedures, and if Agent Gregory did not make any mistakes, and if Agent Gregory did not deliberately falsify or alter the findings, then Special Agent Schell "would have come to the same conclusion that she did." As the Supreme Court clearly established in Melendez-Diaz, it is precisely these "ifs" that need to be explored upon cross-examination to test the reliability of the evidence. Melendez-Diaz, 557 U.S. at __, 129 S. Ct. at 2537, 174 L. Ed. 2d at 327 (methodology that forensic drug analysts use "requires the exercise of judgment and presents a risk of error that might be explored on cross-examination"). Special Agent Schell could not have answered these questions because she conducted no independent analysis. She testified exclusively as to the tests that Agent Gregory claimed to have performed, and used testimonial documents not admissible under Melendez-Diaz. Her conclusion that she agreed with Agent Gregory's analysis assumes that Agent Gregory conducted the tests in the same manner that Special Agent Schell would have; however, the record shows that Special Agent Schell had no such actual knowledge of Agent Gregory's actions during the testing process.
Brewington, __ N.C. App. at __, 693 S.E.2d at 190. Our Court came to similar conclusions in State v. Craven, __ N.C. App. __, 696 S.E.2d 750 (2010), State v. Williams, __ N.C. App. __, 702 S.E.2d 233 (2010), and State v. Garnett, __ N.C. App __, __, 706 S.E.2d 280 (2011).
In Craven, our Court again concluded that the trial court impermissibly allowed an expert witness to testify as to the results of another analyst's lab report. __ N.C. App. at __, 696 S.E.2d at 754. Citing Brewington, we reasoned that the expert's testimony was impermissible because she took no action to independently verify the data from the lab report of the non-testifying analyst. Id. In Williams, our Court concluded that the testimony of an expert witness, where she detailed her "peer review" of another analyst's lab report, "was merely a summary of the underlying analysis" and admission of the testimony was error. Williams, __ N.C. App. at __, 702 S.E.2d at 237-38. We based our holding upon two decisive facts of the testifying expert witness 1) "did not conduct any tests on the substance;" and 2) was not present during the testing of the seized substances. Id. at __ N.C. App. at __, 702 S.E.2d at 237.
Most recently, in Garnett, our Court reviewed an appeal in which the defendant argued "that the trial court erred in permitting the State's expert witness to testify as to the identity and weight of the `leafy green plant substance' seized where the expert's testimony was based upon the analysis performed by a non-testifying forensic analyst." Garnett, __ N.C. App. at __, 706 S.E.2d at 283. On appeal, we concluded that while the admission of the expert testimony was erroneous, when viewed in light of the remaining evidence, this error did not prejudice the defendant. Id. This Court reasoned that the expert's testimony at trial "consistently refer[ed] to the conclusions drawn by the testing analyst[,] not conclusions from his own analysis." Id. at __, 706 S.E.2d at 285. We also noted that several mistakes were made by the analyst during analysis of the evidence. Id.
There is no bright-line test to determine whether the opinion testimony of an expert witness is based upon inadmissible testimonial evidence. In fact, we acknowledge that since the Melendez-Diaz decision, our analyses in subsequent cases where reports are characterized as testimonial need clarification. We especially note that for both `technical review' and `peer review', where in each type of review, an analyst's colleague reviews the non-testifying analyst's reports, the distinction can be nonexistent. In Mobley, an analyst's testimony about her "technical review" was permitted where she did "not [testify] just to the results of other experts' tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts' tests, and her own expert opinion based on a comparison of the original data." Mobley, 200 N.C. App. at 574, 684 S.E.2d at 511. "Peer review" was permissible in Hough, where the witness explained that her role was to examine the lab report for error; however "peer review" was rejected in Craven and Williams where the testifying analyst merely summarized the report. While this area of the law lacks consistency, it is clear that in the case sub judice, the witness' testimony was a mere summary and should not have been admitted.
We note that at the drafting of this opinion the Supreme Court of North Carolina had granted temporary stays with respect to Brewington, Craven, and Williams. We also note that the Supreme Court of North Carolina recently allowed the State's petition for discretionary review in Brennan. State v. Brennan, __ N.C. __, ___ S.E.2d ___ (2011) (No. 211PA10, filed 7 April 2011). We therefore acknowledge that it appears complications in this area of the law will soon be addressed by the Supreme Court of North Carolina.
Here, Agent Lindley testified that she conducted a "peer review" of the lab report created by Agent Kruse. Despite conducting a "peer review", there is no record evidence indicating that Agent Lindley took any action to verify the results of the lab report on which she based her testimony. During the voir dire of Agent Lindley, the following colloquy occurred:
[Agent Lindley]: For every case that's completed in the crime lab, regardless of the section, a technical review is completed, as well as an administrative review. Our reviews in the Drug Chemistry Section include a combined technical and administrative review.
[The State]: Okay. And when you reviewed the — or when you did in this case review the report that was previously created by Kathryn Kruse, what is the process for you to review that?
[Agent Lindley]: What we do in the Drug Chemistry Section is we receive the reviewable data and the notes for the case. We examine those and look at them to ensure that they have performed the necessary tests and that they meet the minimum requirements for identifying a controlled substance, ensuring that that was done and following the proper policy. . . .
. . . .
[Agent Lindley]: . . . ensuring that the data is good quality data and corresponds to what their — what opinion they're forming in the results of their analysis.
. . . .
[The State]: And based on your review of the data and the report that you described earlier that Agent Kruse conducted, were you also able to form an opinion about what the substance was that was analyzed?
[Agent Lindley]: Yes, sir.
[The State]: And what was your opinion?
[Agent Lindley]: My opinion was that the item that was examined was cocaine base as well.
Shortly thereafter, Defendant's counsel cross-examined Agent Lindley. During this cross-examination, the following colloquy occurred.
[Defendant's Counsel]: Would it be fair to say that your opinion is based solely on data generated by Agent Kruse?
[Agent Lindley]: The data generated in this case is what was reviewed for my opinion. Yes, ma'am.
[Defendant's Counsel]: So if there had been — if Agent Kruse had made a mistake in formulating her data, would that affect your opinion?
[Agent Lindley]: I don't know how to answer that. The only information I have available to me is the data provided to me, and it's labeled as corresponding to this case. Based off of the fact that it is labeled and appropriately matches this case, I assume it to be the data that corresponds with this case.
[Defendant's Counsel]: So aren't you just basically reading her report, her data?
[Agent Lindley]: No, ma'am. No, ma'am.
[Defendant's Counsel]: What are you doing independently of her data to confirm whether or not this is her opinion?
[Agent Lindley]: The data is reviewable data, meaning that anyone who is trained in the analysis of a controlled substance should be able to look at the results and the data generated in this case and form their own independent conclusion.
Agent Lindley provided substantially the same testimony during the substantive trial proceedings. Agent Lindley's expert opinion is dependent upon the accuracy of the data generated by Agent Kruse's lab report. There is no evidence that Agent Lindley participated in the testing of the alleged controlled substance, or that she conducted her own examination of the seized substances. Agent Lindley is unable to determine, with any degree of certainty, the accuracy of Agent Kruse's testing process.
Though we do not suggest that there was impropriety in the production of the lab report in question, Defendant is entitled to an opportunity to explore these issues on cross-examination and to test the reliability of the State's evidence. See Brewington, __ N.C. App. at __, 693 S.E.2d at 190. Because there is no evidence suggesting that Agent Lindley took action to verify Agent Kruse's lab report, Defendant did not receive a legitimate opportunity to confront the witnesses presented against him by the State. Accordingly, we hold that Agent Lindley's testimony was a mere summarization of the lab report created by Agent Kruse, and the trial court's admission of this testimony was erroneous.
The trial court's decision to admit the testimony of Agent Lindley warrants reversal on appeal. Defendant was charged with the offense of felony possession of cocaine. The State has the burden of proving that the seized substance was indeed cocaine. See N.C. Gen. Stat. § 90-95(a)(1) (2009). Our Court has held that a "[v]isual identification, even by a trained police officer . . ., is not enough to identify beyond a reasonable doubt a substance chemically defined by our legislature." State v. Jones, __ N.C. App. __, __, 703 S.E.2d 772, 774-75 (2010). Other than the testimony of Agent Lindley, the State offered no evidence of the chemical composition of the substance obtained from Defendant on 2 April 2008. Because the admission of Agent Lindley's testimony was not harmless, we hold that Defendant is entitled to a new trial.
New Trial.
Judge MCGEE concurs.
Judge BRYANT concurs in the result only.
Report per Rule 30(e).