State Of North Carolina v. Brewington
| Decision Date | 18 May 2010 |
| Docket Number | No. COA09-956.,COA09-956. |
| Citation | 693 S.E.2d 182 |
| Parties | STATE of North Carolinav.John Edward BREWINGTON. |
| Court | North Carolina Court of Appeals |
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Appeal by defendant from judgment entered 13 February 2009 by Judge Arnold O. Jones, II, in Wayne County Superior Court. Heard in the Court of Appeals 10 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General Lisa Bradley Dawson, for the State.
Lucas & Ellis, PLLC, by Anna S. Lucas, Sanford, for defendant appellant.
Defendant John Edward Brewington (“defendant”) appeals from a judgment finding him guilty of possessing cocaine. Defendant argues on appeal that the trial court erred by allowing the State's expert forensic chemist to offer an opinion as to the composition of the contraband substance in issue because the testifying expert was not the expert that conducted the analysis of the substance. After careful review, we hold that the expert testimony should have been excluded, and award defendant a new trial.
On 1 December 2008, a grand jury returned a true bill of indictment against defendant charging him with possession of a controlled substance. Defendant pled not guilty, and the trial commenced on 12 February 2009.
The State's evidence tended to show that on 18 January 2008, defendant was stopped on the street by Officer James Serlick of the Goldsboro Police Department for riding a bicycle with no reflective lights. Officer Serlick advised defendant that it was unlawful to operate a bicycle without reflectors, and asked if defendant would consent to being searched. Defendant consented, and during the course of the search, a napkin fell out of one of defendant's socks. Officer Serlick testified that when he looked inside the napkin, he discovered an “offwhite rock like substance, what [he] believed to be cocaine.” Officer Serlick testified that he placed defendant under arrest for possession of a controlled substance, and transported him to the magistrate's office. After delivering defendant to the jail, Officer Serlick completed the necessary paperwork and secured the “rock like substance” in the police department evidence locker.
Officer Robert Smith, an evidence technician at the Goldsboro Police Department, testified that he and another officer later retrieved the evidence placed in the locker and packaged it to be sent to the State Bureau of Investigation (“SBI”) for analysis. Officer Smith testified that he received the evidence back from the SBI on 9 May 2008, along with the written results of the analysis conducted by the SBI.
SBI Special Agent Kathleen Schell was tendered as an expert witness in forensic chemistry, and testified regarding the testing of the “offwhite rock like substance.” Defendant objected to the testimony of Special Agent Schell on Sixth Amendment grounds, and argued that the testimony should be excluded because Special Agent Schell was not the expert that actually conducted the testing. Defendant contended that he was entitled to cross-examine the testing expert under the Confrontation Clause. The trial court allowed an extensive voir dire of Special Agent Schell, but declined to rule on defendant's motion. Thereafter, the jury was brought back into the courtroom, and after further direct examination by the State, the trial court qualified Special Agent Schell as an expert in forensic chemistry. Court was then recessed until the following morning.
On 13 February 2009, the trial court opened proceedings with further voir dire of Special Agent Schell. After hearing final arguments from each side, the trial court denied defendant's motion, citing State v. Delaney, 171 N.C.App. 141, 613 S.E.2d 699 (2005); State v. Jones, No. COA03-976, 2004 N.C.App. LEXIS 1655, 2004 WL 1964890 (N.C.Ct.App., Sept. 7, 2004) (unpublished); and State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984). Applying these cases, the trial court ruled that admitting Special Agent Schell's testimony did not violate the Confrontation Clause of the Sixth Amendment.
After testifying in detail about routine SBI lab procedures, Special Agent Schell offered the following testimony.
The jury convicted defendant of possession of cocaine on 13 February 2009, and defendant gave oral notice of appeal.
Jurisdiction in this Court is proper pursuant to N.C. Gen.Stat. § 7A-27(b) (2009). This Court reviews alleged violations of constitutional rights de novo. State v. Tate, 187 N.C.App. 593, 599, 653 S.E.2d 892, 897 (2007). If a defendant shows that an error has occurred, the State bears the burden of proving the error was harmless beyond a reasonable doubt. N.C. Gen.Stat. § 15A-1443(b) (2009). Under the de novo standard of review, this Court “considers the matter anew and freely substitutes its own judgment for that of the [trial court].” In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).
On appeal, defendant argues that it was reversible error for the trial court to allow the testimony of Special Agent Schell as to the identity of the substance contained in State's Exhibit 1B. Defendant argues that by permitting Special Agent Schell to testify as to her opinion regarding the substance based solely on testing conducted by Agent Gregory, defendant was denied his right under the Sixth Amendment to meaningfully confront the witness against him, Agent Gregory. 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, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177, 203 (2004)). The U.S. Supreme Court has recently applied the holding in Crawford to documents or reports that the government seeks to enter into evidence that are “testimonial” in nature, holding that “[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence [is] error.” Melendez-Diaz v. Massachusetts, 557 U.S. ----, 129 S.Ct. 2527, 2542, 174 L.Ed.2d 314, 332 (2009).
In Melendez-Diaz, the government sought to introduce “certificates of analysis” as evidence that a substance was cocaine. The Supreme Court held that the “certificates of analysis” prepared by a forensic analyst for trial were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at ----, 129 S.Ct. at 2532, 174 L.Ed.2d at 321 (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 2278, 165 L.Ed.2d 224, 242 (2006)).
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