Criminal Practice – Constitutional – Confrontation Clause – Drug Analysis – Lay Witness – Plain Error

State v. Burrow (Lawyers Weekly No. 12-07-0150, 21 pp.) (Robert N. Hunter Jr., J.) (Robert C. Hunter, J., dissenting) Appealed from Lincoln County Superior Court. (Beverly T. Beal, J.) N.C. App. Click here for full-text opinion.

Holding: The pills seized from defendant were identified only in an SBI report. The SBI analyst did not testify, and there was no indication that he was unavailable. It was plain error for the trial court to admit the SBI report through the testimony of a lay witness, a police detective.

Defendant is entitled to a new trial.

On cross-examination of the same police detective, defense counsel posed a question regarding whether the ingredients on the pill bottle matched what the SBI lab determined was in the bottle, Detective Munday responded, “Yes. They said it was oxycodone.”

Defense counsel elicited no at-length discussion regarding the identification of the substance as oxycodone and simply asked a clarifying question to explain the evidence. Thus, we find this case distinguishable from  State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999), State v. Johnson, 337 N.C. 212, 446 S.E.2d 92 (1994), and State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973). Moreover, none of  these cases involves evidence admitted regarding the identification of a drug.

Dissent

(Hunter, J.) Defendant failed to object to the state’s evidence concerning the SBI report and then proceeded to elicit the result of the SBI report from Detective Munday on cross-examination. Even though this evidence violated defendant’s Confrontation Clause rights when admitted by the state, based on our case law, defendant has failed to demonstrate prejudicial error, much less plain error.