State v. Brent

• Decision Date: 21 June 2011
• Docket Number: NO. COA10-98 9,COA10-98 9
• Court: North Carolina Court of Appeals
• Parties: STATE OF NORTH CAROLINA v. DEWAN KENNETH BRENT

STATE OF NORTH CAROLINA v. DEWAN KENNETH BRENT

NO. COA10-98 9

NORTH CAROLINA COURT OF APPEALS

Dated: June 21, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Forsyth County No. 08-CRS-53477

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.

BEASLEY, Judge.

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 hisSixth Amendment rights to confrontation, we conclude that he is entitled to a new trial.

Defendant's criminal trial began on 15 February 2 010. 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 ofhis 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").¹ 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."

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 ofthe 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-examinethe 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.2d427, 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 testifyingwitness explained "peer review" consisted of examining the lab report for errors in...