Criminal Practice – Controlled Substances – Notice of Intent to Introduce Evidence – Waiver of Right to Counsel – Plain Error

State v. Blackwell. (Lawyers Weekly No. 10-07-0918, 7 pp.) (Donna S. Stroud, J.) Appealed from Person County Superior Court (Donald W. Stephens, J.) N.C. App.

Holding: When a defendant is not represented by counsel and the state fails to serve a notice upon him that it intends to use lab results on the nature of the alleged controlled substance seized as evidence, the error is great enough to warrant a new trial.

Facts

In February 2009, defendant was indicted for two counts of possession with intent to sell and two counts of selling cocaine. In March 2009 he waived his right to assigned counsel. The record does not indicate that defendant was represented by privately retained counsel until June 2009.

However, in March, the state sent attorney Chris Perkins a notice that it intended to use all laboratory reports prepared by the State Bureau of Investigation as evidence of the nature of the alleged controlled substances seized. The certificate of service indicates the notice was served on Perkins as counsel for defendant. On June 15, Perkins was appointed counsel for defendant.

The next day, attorney C.A. Couch filed a notice of appearance on behalf of the defendant. On June 17, a jury found defendant, who was represented by Couch, guilty on all four drug charges.

The defendant did not have an attorney of record in March 2009 when the state sent the notice about the intention to use SBI lab reports, so the state should have served the notice on the defendant personally instead of sending it to an attorney who no longer represented him. During the trial the defendant objected to the admission of the lab report regarding the first two counts into evidence, but not the report regarding the second two counts.

When a defendant objects, we review for admissibility as a matter of law and whether the court abused its discretion. When a defendant fails to object we review for plain error.

We do not distinguish between those two standards here because the introduction of each laboratory report resulted in prejudice so grave that it meets the heightened standards of plain-error review. Plain error is an error so fundamental that it amounts to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.

In this case, the trial court erroneously concluded that the state had complied with G.S. § 90-95(g), which requires the state to notify the defendant of its intention to use evidence of lab reports of substances seized. Without the laboratory reports, there was no competent evidence that the substance the defendant possessed and sold was cocaine. We conclude the introduction of the first lab report was error and the introduction of the second was plain error.

Defendant is granted a new trial.