Criminal Practice – Constitutional – Confrontation Right – Expert Chemist – Others’ Reports – Cocaine – Maintaining a Vehicle – Lay Testimony – Sentencing

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State v. Craven. (Lawyers Weekly No. 10-07-0679, 17 pp.) (Wanda G. Bryant, J.) Appealed from Chatham County Superior Court. (Kenneth Titus, J.) N.C. App.

Holding: Where the state’s expert chemist only reviewed the reports of other chemists with regard to two of the three cocaine buys at issue, defendant’s constitutional right to confront the witnesses against him was violated as to those two offenses.

We vacate defendant’s cocaine sale convictions as to the March 3 and 6, 2008, incidents. Otherwise, we find no error. Remanded for re-sentencing.

Defendant argues that the trial court erred in admitting Special Agent Kathleen Schell’s testimony about the analyses conducted by the other forensic analysts because this testimony violated his state and federal constitutional rights to confrontation. We agree.

Forensic analysts’ affidavits certifying that a substance is cocaine are testimonial statements, and the analysts are “witnesses” for purposes of the Sixth Amendment. Melendez-Diaz v. Massachusetts, 174 L. Ed. 2d 314 (2009).

We have established a four part process to be used in applying the rules articulated in Melendez-Diaz to a particular case: (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.

Special Agent Schell testified that she reviewed the data and analyses of both the other forensic chemists and agreed with their conclusions.

Defendant’s constitutional right to confront witnesses against him was violated by admission of the forensic analyses and Special Agent Schell’s related testimony about the substances obtained on March 3 and 6, 2008.

In 08 CRS 050528-9, defendant was convicted of and sentenced for three offenses which occurred on those dates: two counts of conspiracy to sell or deliver cocaine and one count of selling or delivering cocaine.

The state contends that it presented lay opinion testimony that the substance was cocaine by way of Christina Smith’s testimony that she had used cocaine for 20 years and that the substances sold on March 3 and 6, 2008, were cocaine. The state contends this lay opinion testimony rendered the erroneous admission of the expert testimony harmless. We do not agree.

While this court has held that testimony from a drug user that a substance she smoked was methamphetamine is admissible lay testimony under Rule 701, this does not suggest that a drug user’s lay opinion has the same impact on a jury as expert scientific testimony admitted under N.C. R. Evid. 702. To the contrary, we believe that scientific testing by an expert forensic analyst would be much more influential than lay opinion from an admitted drug user.

Because we cannot say that there is no reasonable possibility that the erroneous admission of the lab analyses and related expert testimony regarding the substances sold on March 3 and 6, 2008, might have contributed to the conviction, we cannot hold this error harmless. Thus, we vacate defendant’s three convictions in 08 CRS 050528-9.

Without the erroneously admitted analyses and related testimony, there was no expert testimony or documentary evidence that defendant possessed cocaine in his mother’s car on March 3 or 6, 2008. However, Smith’s testimony that she and defendant had transported cocaine “eightballs” sold to informant Zbytniuk on March 3 and 6, 2008, in defendant’s mother’s car was admissible lay testimony under N.C. R. Evid. 701.

Special Agent Schell gave expert testimony that the substance defendant possessed on March 21, 2008 was cocaine. In the light most favorable to the state, the testimony of Smith and Special Agent Schell constituted substantial evidence which a reasonable mind might accept as adequate to support a conclusion that defendant had possession of cocaine in his mother’s car over a duration of time and/or on more than one occasion.

In an earlier case, defendant was indicted in 06 CRS 50435 on Aug. 7, 2006, and the trial court accepted defendant’s guilty plea on Jan. 22, 2007. Judgment was continued from term to term.

Thereafter, defendant never requested sentencing and, thus, consented to continuation of his sentencing hearing until March 13, 2009. The two-year delay in and of itself is not unreasonable.

Defendant contends he was prejudiced by the delayed entry of the judgment because the 06 CRS 50435 conviction was used to determine his prior record level for sentencing on the 2008 convictions. We disagree; had the trial court entered judgment at some earlier point for the 06 CRS 50435 conviction, that conviction would still have been used to determine his prior record level.

No error in part. Vacated in part and remanded for re-sentencing.