Criminal Practice – Constitutional – Confrontation Clause – Evidence – Expert Witness – Lab Tests – Independent Analysis – Peer Review

State v. Ortiz-Zape (Lawyers Weekly No. 13-06-0657, 43 pp.) (Mark Martin, J.) (Cheri Beasley, J., not participating) (Robin E. Hudson, J., joined by Sarah Parker, Ch.J., dissenting) Appealed from Mecklenburg County Superior Court (Jerry Cash Martin, J.) On discretionary review from the Court of Appeals. N.C. S. Ct.

Holding: At a cocaine possession trial, there was no violation of defendant’s rights under the Confrontation Clause despite the fact that the state’s expert witness was not the same person who tested the substance found in defendant’s possession. The expert witness independently analyzed the test results, and defendant’s opportunity to cross-examine her satisfied the Confrontation Clause.

We reverse our Court of Appeals’ holding that there was a violation of defendant’s Sixth Amendment right to confront witnesses against him.

The N.C. Rules of Evidence allow for expert testimony “in the form of an opinion, or otherwise,” if the expert’s “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” provided “(1) The testimony is based upon sufficient facts or data[;] (2) The testimony is the product of reliable principles and methods [and] (3) The witness has applied the principles and methods reliably to the facts of the case.” N.C. R. Evid. 702(a). The expert may base the opinion on facts or data “made known to him at or before the hearing.” “If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

The Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.”

Williams v. Illinois, 132 S. Ct. 2221 (2012), seems to indicate that a qualified expert may provide an independent opinion based on otherwise inadmissible out-of-court statements in certain contexts. When an expert states her own opinion, without merely repeating out-of-court statements, the expert is the person whom the defendant has the right to cross-examine. If the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, this allows the fact-finder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible.

Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data “of a type reasonably relied upon by experts in the particular field” does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert. We emphasize that the expert must present an independent opinion obtained through his or her own analysis and not merely “surrogate testimony” parroting otherwise inadmissible statements.

Additionally, because machine-generated raw data are not statements by a person, they are neither hearsay nor testimonial. Consistent with the Confrontation Clause, if “of a type reasonably relied upon by experts in the particular field,” raw data generated by a machine may be admitted for the purpose of showing the basis of an expert’s opinion.

In this case, defendant did not allege plain error; therefore, we review only the single alleged error to which he objected at trial and thereby preserved for appellate review: Charlotte-Mecklenburg Police Department Agent Tracey Ray’s statement that in her expert opinion the substance was cocaine. We review this alleged constitutional error de novo.

The reports produced by the non-testifying analyst were not admitted into evidence.

Even though Ray did not personally test the substance or observe it being tested, when she gave her opinion, that opinion was the substantive evidence, and Ray was the witness whom defendant had the right to confront. In accordance with Rule of Evidence 703, Ray gave her expert opinion that was based upon facts or data “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”

As part of her review, Ray analyzed the “reviewable data” generated by a mass spectrometer. Ray testified that this machine internally records the data and there is no way to make alterations to what is recorded. As she stated on cross-examination, the machine produces a graph based on its testing, from which Ray was able to determine “the molecular weight of the substance and how it breaks down and relate that back to the chemical structure.” Ray compared the machine-produced graph to the data from the lab’s sample library and concluded that the substance was cocaine.

This expert opinion, from Ray’s own analysis of the data, constituted the substantive evidence being presented against defendant. Therefore, the testifying expert was the witness whom defendant had the right to confront. Defendant was able to cross-examine Ray fully concerning all aspects of her testimony.

Accordingly, the admission of Ray’s expert opinion did not violate defendant’s right to confront witnesses against him.

Even assuming admission of Ray’s expert opinion violated defendant’s rights under the Confrontation Clause, the alleged error was harmless. The arresting officer testified that defendant acknowledged the seized substance was his cocaine. Further, defense counsel elicited testimony that the substance appeared to be cocaine. Thus, any error in allowing the expert opinion was harmless.

Reversed.

Dissent

(Hudson, J.) Williams did not hold — nor do any other cases — that expert testimony like that here, based entirely on testing done by an absent analyst for the sole purpose of prosecuting this defendant, would be free of a Confrontation Clause violation if the expert claimed her opinion was “independent,” when the record shows manifestly that it was not.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), establishes that absent a stipulation or a statutory notice-and-demand waiver, a lab report may not be admitted without offering a live witness competent to testify to the truth of the statements made in the report.

In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the Supreme Court concluded that a defendant’s right “is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

The Confrontation Clause “does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.” Bullcoming. Because the expert here (Agent Ray) simply viewed and agreed with the test results of another (Agent Mills), while she performed no testing and was not present for those tests, I must conclude her testimony violates the Confrontation Clause when analyzed according to the jurisprudence of Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz, Bullcoming, and Williams. The defendant here had the right to cross-examine Mills, not just Ray.

Agent Ray was not asked about and did not explain any “analysis” that she performed; instead, she explained that her administrative and technical reviews were “to make sure there is [sic] no mistakes,” as with spelling or data input, and to verify that she would have reached the same conclusion based on the data generated by the testing agent. In my view, this is not an “independent” opinion as that term is used by the Supreme Court.

While “raw, machine-generated data” are neither hearsay nor testimonial, Ray did not simply look at graphs produced from machines and testify to those results. She reviewed the lab report and testified to some of its contents – specifically which tests the non-testifying analyst conducted and the results of those tests. As soon as she testified to past events memorialized in the testing analyst’s lab notes and drug worksheet, Ray implicated the Confrontation Clause.

Further, even if she had only relied on raw data in forming her opinion, Agent Ray’s expert opinion would be relevant only if the state provided the foundation for the data. Effectively, Ray’s opinion is “if everything was done properly, and if the report is accurate, then the substance is cocaine.” Without other evidence to confirm those assumptions, there is no actual proof that defendant possessed cocaine.

Because I would hold that Agent Ray’s testimony was inadmissible, the only remaining evidence the state presented to prove that the substance was cocaine was (1) the officer’s testimony that defendant admitted the fact to him at the scene of the crime, and (2) the officer’s testimony that the substance “appear[ed] to be powder cocaine.” This is hardly overwhelming evidence because it turns entirely on the officer’s credibility. Moreover, in defendant’s testimony, he denied that he had said the substance was cocaine.

I would grant defendant a new trial.