State v. Brewington ( 2013 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 235PA10
FILED 27 JUNE 2013
STATE OF NORTH CAROLINA
v.
JOHN EDWARD BREWINGTON
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous
decision of the Court of Appeals, 204 N.C. App. 68, 693 S.E.2d 182 (2010), finding
prejudicial error in a judgment entered on 13 February 2009 by Judge Arnold O.
Jones, II in Superior Court, Wayne County, and ordering that defendant receive a
new trial. Heard in the Supreme Court on 12 February 2013.
Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy
Attorney General, and Daniel P. O’Brien, Assistant Attorney General, for the
State-appellant.
Anna S. Lucas for defendant-appellee.
EDMUNDS, Justice.
Defendant John Edward Brewington’s conviction for possession of cocaine
was reversed by the Court of Appeals on the grounds that his right to confront the
witnesses against him, guaranteed by the Sixth Amendment to the Constitution of
the United States, was violated. Because we conclude that defendant’s
confrontation rights were adequately preserved, we reverse.
STATE V. BREWINGTON
Opinion of the Court
At about 10:15 p.m. on 18 January 2008, Goldsboro Police Officer James
Serlick observed defendant riding a bicycle on Potley Street. None of the lights or
reflectors legally required for riding after dark were on the bicycle, so the officer
stopped defendant and asked for identification. When the officer further asked
defendant if he was carrying either drugs or a weapon, defendant gave Officer
Serlick consent to search his person. During the ensuing pat-down, the officer
touched something that “felt like a rock” on the inside of defendant’s left leg. Officer
Serlick pulled defendant’s sock down and a napkin fell out. The officer opened the
napkin and saw “an offwhite rock-like substance” that he believed to be cocaine.
Officer Serlick seized the substance, then arrested defendant and transported him
to the magistrate’s office. Defendant was indicted for possession of cocaine, in
violation of N.C.G.S. § 90-95(a)(3).
At defendant’s trial, the State presented evidence to establish chain of
custody of the seized substance. Officer Serlick testified that he placed the rock-like
substance in a plastic bag, initialed it, added such routine information as the case
number, defendant’s name, the item number, and the date and time the item was
recovered, and then secured the plastic bag in an evidence locker. The material
subsequently was transported to the North Carolina State Bureau of Investigation
(SBI) laboratory, where it was analyzed by Assistant Supervisor in Charge Nancy
Gregory. However, at trial, evidence of the identity of the material found in
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Opinion of the Court
defendant’s sock was presented through the testimony of SBI Special Agent
Kathleen Schell.
Before Agent Schell reached the crux of her testimony as to the chemical
analysis of the substance, defense counsel objected and moved to exclude her
testimony on the grounds that Agent Schell “didn’t actually do the analysis in the
case,” and, as a result, defendant was “not able to cross-examine this person . . . .
because her opinion is not going to be based on an actual test done to the item of
evidence . . . , her opinion is going to be based solely on what some other person did
and wrote down in a report.” The trial court allowed an extensive voir dire of Agent
Schell, then denied defendant’s motion.
Continuing her testimony before the jury, Agent Schell described how an
item submitted to the SBI laboratory is given a unique identification number and
how the progress of such an item is tracked. She identified Agent Nancy Gregory as
her supervisor and described Agent Gregory’s training and experience. Agent
Schell then reported how preliminary color tests are performed on a substance,
followed by more specific tests tailored to the results of the color tests. She advised
that the chemist who does the testing prepares a report and that the data and
resulting report are reviewed by another SBI chemist, adding that her own duties
include conducting such reviews. The record indicates that Agent Gregory’s
laboratory report was not admitted into evidence. Agent Schell’s direct testimony
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Opinion of the Court
concluded with the prosecutor asking whether she had formed an opinion, based
upon her review of the results of Agent Gregory’s testing, as to the identity of the
substance. Defendant again objected but his objection was overruled. Agent Schell
testified that, in her opinion, the substance was cocaine base. Defendant thereafter
cross-examined Agent Schell carefully and extensively, leaving no doubt that Agent
Schell did not personally perform or observe any of the tests she relied on in
forming her opinion.
On appeal, defendant argued that his rights secured under the Confrontation
Clause of the Sixth Amendment were violated when the trial court permitted Agent
Schell to testify that the substance found on defendant was cocaine based solely on
Agent Gregory’s notes and lab report. Relying heavily on the Supreme Court of the
United States’ decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
2527, 174 L. Ed. 2d 314 (2009), the Court of Appeals found that the admission of
Agent Schell’s testimony constituted “an expert utilizing data collected by another
person to form an independent opinion,” State v. Brewington, 204 N.C. App. 68, 77,
693 S.E.2d 182, 188 (2010), and determined that admission of the testimony
violated the Confrontation Clause, id. at 82-83, 693 S.E.2d at 191-92.
The Court of Appeals noted that Agent Schell testified that she “ ‘would have
come to the same conclusion that [Agent Gregory] did,’ ” but only “if Agent Gregory
followed procedures” and “if [she] did not make any mistakes.” Id. at 80, 693 S.E.2d
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Opinion of the Court
at 190. The court continued that “it is precisely these ‘ifs’ that need to be explored
upon cross-examination to test the reliability of the evidence” and concluded that
permitting Agent Schell to testify about the composition of the substance tested,
and to identify it as cocaine, was error. Id. The Court of Appeals further found that
no other concrete evidence identified the substance as cocaine and concluded that
the admission of Agent Schell’s testimony was not harmless error. Accordingly, the
Court of Appeals ordered a new trial. Id. at 82-83, 693 S.E.2d at 192.
We allowed the State’s petition for discretionary review and now reverse the
holding of the Court of Appeals. This Court has recently considered the scope of
protections provided by the Confrontation Clause of the Sixth Amendment in State
v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11). In Ortiz-Zape, after
conducting an exhaustive review of current Confrontation Clause jurisprudence, we
determined that “when an expert gives an opinion, the opinion is the substantive
evidence and the expert is the witness whom the defendant has the right to
confront.” Id. at ___, ___ S.E.2d at ___. In addition, we stated that “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.” Id. at ___, ___ S.E.2d at ___. Here, Agent Gregory’s lab notes were not
admitted into evidence. Instead, as in Ortiz-Zape, Agent Schell presented an
independent opinion formed as a result of her own analysis, not mere surrogate
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Opinion of the Court
testimony. See id. at ___, ___ S.E.2d at ___. Defendant was able to conduct a
vigorous and searching cross-examination that exposed the basis of, and any
weaknesses in, Agent Schell’s opinion. Accordingly, we conclude that defendant’s
Confrontation Clause rights were not violated.
The decision of the Court of Appeals is reversed.
REVERSED.
Justice HUDSON dissenting.
Because the majority here relies entirely on what I see as the flawed analysis
in State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11), I will not
repeat the discussion from my dissenting opinion there. I write specifically to draw
attention to the ways in which the majority here has gone even farther astray than
in Ortiz-Zape.
In Ortiz-Zape Agent Ray described her review of the testing analyst’s work.
According to the majority’s opinion, “Ray compared the machine-produced graph to
the data from the lab’s sample library and concluded that the substance was
cocaine.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. Although it is clear from
the testimony that Ray merely gleaned the conclusion from the report (She
admitted that “I can only say according to the worksheet.”), she was asked, “What is
your independent expert opinion?” and answered, “My conclusion was that the
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HUDSON, J., dissenting
substance was cocaine.” Id. at ___, ___ S.E.2d at ___. Here, by contrast, Agent
Schell was not asked and made no attempt to characterize her testimony as an
“independent expert opinion.” Rather, she was asked if she had “reviewed . . . the
results of the examinations” performed by the testing analyst and if she had “also
reviewed Agent Gregory’s conclusion[.]” She testified that “[b]ased upon all the
data that [Agent Gregory] obtained from the analysis of that particular item . . . I
would have come to the same conclusion that she did.” (Emphasis added.) This
testimony is problematic.
As with every other Confrontation Clause case we decide today, a central
question is whether the analyst’s opinion is independent or not. The independence
of the testifying expert’s opinion becomes crucial when, as here, the lab report
underlying that opinion is testimonial and the analyst who prepared the report did
not testify. Under these circumstances, the report and its conclusions are usually
inadmissible under the Confrontation Clause. A truly independent expert opinion
may serve as evidence in the case, while an opinion based solely on review of and
agreement with the inadmissible report is constitutionally infirm. Here, Agent
Schell did nothing more than review Agent Gregory’s notes and results and agree
with her conclusion. Agent Schell’s opinion was entirely based on another’s work
and notes, and involved no independent analysis whatsoever.
Moreover, while Agent Ray in Ortiz-Zape avoided reference to the original
analyst’s conclusions, Agent Schell actually introduced through her testimony
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HUDSON, J., dissenting
Agent Gregory’s conclusion from the lab report—the very conclusion that the trial
court had explicitly ruled was inadmissible without testimony from Agent Gregory.
Agent Schell testified that she “[came] to the same conclusion that [Agent Gregory]
did,” and then reported to the jury that conclusion: that the substance was 0.1
grams of cocaine base. In so testifying, Agent Schell informed the jury of the absent
analyst’s testimonial conclusion and thereby acted as a surrogate rather than an
independent witness. This directly violates the rule in Bullcoming, in that Agent
Gregory, not Agent Schell, should have been made available for cross-examination
to satisfy the Confrontation Clause. “[S]urrogate testimony . . . could not convey
what [the certifying analyst] knew or observed about the events this certification
concerned, i.e., the particular test and testing process he employed. Nor could such
surrogate testimony expose any lapses or lies on the certifying analyst’s part.”
Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2715 (2011) (footnote
omitted).
Finally, the majority in Ortiz-Zape purports to find independent state law
grounds to uphold the conviction, claiming that any possible constitutional error
was harmless in light of other evidence establishing the chemical identity of the
substance. Even if that analysis were correct—and it is not—no such escape valve
exists in this case. Here, the officer testified on direct examination that he arrested
defendant because he observed something he “believed” to be crack cocaine fall out
of defendant’s sock during a pat-down and that he took “the cocaine” into evidence.
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STATE V. BREWINGTON
HUDSON, J., dissenting
Even if visual identification of crack cocaine by a layperson were permissible—a
question this Court has not addressed, though the Court of Appeals has consistently
ruled that it is not—such visual identification could hardly be considered
“overwhelming evidence” of guilt sufficient to rebut the strong presumption that
constitutional error is prejudicial. See State v. Autry, 321 N.C. 392, 399-400, 364
S.E.2d 341, 346 (1988). I would hold that the State has failed to prove harmless
error beyond a reasonable doubt.
Through this and the other opinions released today, the majority has declined
to follow the guidance of the U.S. Supreme Court’s recent Sixth Amendment
opinions, from Crawford through Williams, and has thus failed to protect a
defendant’s right to confront witnesses against him. The majority asserted in Ortiz-
Zape, and again here, that “when an expert gives an opinion, the opinion is the
substantive evidence and the expert is the witness whom the defendant has the
right to confront.” This statement completely ignores the Supreme Court’s
explanations of the scope of the Sixth Amendment’s Confrontation Clause. Indeed,
if that statement were law, any expert could give an opinion based on any outside
inadmissible evidence, no matter how clearly testimonial or pointedly designed to
prove an element of the State’s case, without running afoul of the Confrontation
Clause. This is precisely the type of problem that the Supreme Court has
repeatedly addressed since Crawford, and most recently in Williams. The majority
may disagree with the rulings of the United States Supreme Court, but we are
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HUDSON, J., dissenting
nonetheless bound by them, as we are bound by the Constitution of the United
States. Because in my view this decision, as that in Ortiz-Zape, is inconsistent with
this Supreme Court jurisprudence, I must respectfully dissent.
Chief Justice PARKER joins in this dissenting opinion.
Justice BEASLEY dissenting.
Because defendant’s right to confront the witnesses against him as
guaranteed by the Sixth Amendment to the Constitution of the United States was
violated, I respectfully dissent. The majority’s rule allowing a substitute expert to
provide the sole evidence of a critical element of the charged offense through an
“independent opinion” diminishes our Confrontation Clause analysis. Instead, I
would examine whether the information offered is critical to the State’s case so as to
determine its true and actual purpose and thus, whether the Confrontation Clause
was violated.
The following facts are necessary for a proper decision in this case. At trial,
Agent Schell testified that Agent Gregory is her supervisor. She then testified as to
her knowledge of Agent Gregory’s experience and training, in addition to her own.
Agent Schell then outlined the general testing procedure for determining whether a
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BEASLEY, J., dissenting
substance is cocaine. She described the security measures in place to track the
reports that are produced and ensure they are not changed. The State next
produced the sample sent to the lab for testing and the envelope in which it was
returned to law enforcement. Referring to Agent Gregory’s notes, Agent Schell
testified to when testing was performed and what kinds of tests were performed,
describing the testing procedure and reason for each test. The first test described
was a color test:
Q. And concerning this particular sample, can you just
explain first the first color test, what kind of test that was
and how it was performed?
....
Q. And from the notes that you retrieved were you able to
determine what the result was of this particular color
test?
A. In this particular test it did not turn any color.
Agent Schell testified that the failure to change color is a negative result, indicating
particular chemicals are not present. She then explained that a second color test
was performed, testifying as to how one typically performs it and what it indicates.
Q. And when you reviewed this particular case, did you
see the results of this test?
A. I did.
Q. And what was the result of that test?
A. It turned blue.
Again, she testified as to the results of the next test:
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BEASLEY, J., dissenting
Q. And based on your review of the lab report, were you
able to determine what the result was of this particular
test?
A. Yes, crosses were obtained. Those specific crosses were
obtained.
She testified that this indicates the substance is cocaine. Yet again, Agent Schell
testified as to the last test: although this time, the question asked and her
testimony spoke more directly to the specific process employed:
Q. And was any other test performed then?
A. A more specific instrumental test was performed.
Q. Can you describe how that test was performed?
....
Q. And in this particular case did you review the results
of that particular test?
A. I did.
Q. And what were the results?
A. In this case the graph produced, there was a mixture of
cocaine base and bicarbonate, which is just baking soda.
So further tests had to be conducted.
....
Q. And what happened when that was done?
A. A graph was produced using that same instrument and
it was a clean graph of just cocaine base.
Q. Now during your tests—during your explanation of the
tests . . . ?
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BEASLEY, J., dissenting
Agent Schell then testified that she reviewed the tests performed and the results
obtained and provided her opinion:
A. Based upon all the data that [Agent Gregory] obtained
from the analysis of that particular item, State’s Exhibit
1B, I would have come to the same conclusion that she
did.
Q. And what is your opinion as to the identity of the
substance that was submitted as State’s Exhibit 1B?
[objection/overruled]
....
A. State’s Exhibit 1B is the Schedule II controlled
substance cocaine base. It had a weight of 0.1 gram.
On cross-examination Agent Schell testified that she did not personally
perform the tests, as noted by the majority. Most significantly, defense counsel
asked, “And they sent you here to testify from that person’s notes who actually did
the test; is that right?” to which Agent Schell responded, “That is correct.”
Based on these facts and the Confrontation Clause precedent that is binding
on this Court, I would hold that it is a violation of the Confrontation Clause to offer
a substitute analyst’s opinion on the identity of a controlled substance when that
opinion relies upon testing performed by another analyst and seeks to serve as
evidence or proof of a critical element of the offense, though purportedly not offered
for the truth of the matter asserted. I would hold it is a further violation to admit
the report of the testing analyst as the basis for that expert opinion.
The Confrontation Clause mandates that defendants have the right to ensure
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BEASLEY, J., dissenting
that any evidence, let alone essential evidence, be vulnerable to its shortcomings
and exposed for any falsities that underlie it. See U.S. Const. amend. VI; Crawford
v. Washington, 541 U.S. 36, 61-62 (2004). When the report at issue, entered into
evidence or not, addresses a critical element of the offense charged, it inherently
operates “against” the defendant, and any person responsible for authoring that
evidence becomes a witness against him. See Melendez-Diaz v. Massachusetts, 557
U.S. 305, 311 (2009) (“[U]nder our decision in Crawford the analysts’ affidavits were
testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth
Amendment.”). In these cases the very nature of the details of the lab report go
beyond testimonial evidence; these details are essential evidence required by
statute and are thus valuable for the truth of the matter asserted. Consequently,
when the truth of the matter asserted in a lab report is critical to the State’s case,
and not merely evidence to bolster the State’s case, any attempt to reveal the
substance of that report, regardless of the stated purpose, without making its
author available for cross-examination necessarily violates the defendant’s right to
confront witnesses against him. See Bullcoming v. New Mexico, ___ U.S. ___, ___,
131 S. Ct. 2705, 2710 (2011) (“The question presented is whether the Confrontation
Clause permits the prosecution to introduce a forensic laboratory report containing
a testimonial certification—made for the purpose of proving a particular fact—
through the in-court testimony of a scientist who did not sign the certification or
perform or observe the test reported in the certification. We hold that surrogate
testimony of that order does not meet the constitutional requirement.” (emphasis
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BEASLEY, J., dissenting
added)); Melendez-Diaz, 557 U.S. at 311 fn. 1 (“It is up to the prosecution to decide
what steps in the chain of custody are so crucial as to require evidence; but what
testimony is introduced must . . . be introduced live.”). It is not sufficient to only
permit the defendant to expose the inadequacies in the testifying expert’s opinion,
for this fails to address concerns regarding the critical evidence itself. In fact there
will likely not be any inadequacies to expose in the testifying expert’s opinion when
the opinion is merely recitation of factual results obtained from the tests of another.
The rule and principles that I set forth above are consistent with the decision
of the United States Supreme Court in Bullcoming:
Principal evidence against Bullcoming was a forensic
laboratory report certifying that Bullcoming’s blood-
alcohol concentration was well above the threshold for
aggravated DWI. At trial, the prosecution did not call as
a witness the analyst who signed the certification.
Instead, the State called another analyst who was
familiar with the laboratory’s testing procedures, but had
neither participated in nor observed the test on
Bullcoming’s blood sample.
The question presented is whether the
Confrontation Clause permits the prosecution to
introduce a forensic laboratory report containing a
testimonial certification—made for the purpose of proving
a particular fact—through the in-court testimony of a
scientist who did not sign the certification or perform or
observe the test reported in the certification. We hold
that surrogate testimony of that order does not meet the
constitutional requirement. The accused’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.
Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2709-10. The facts presented to this Court
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BEASLEY, J., dissenting
today fall squarely under the ruling in Bullcoming.
Just as in Bullcoming, here the principal evidence against defendant was
that which the State submitted through the testifying expert. The evidence at
issue—a substance identified as a controlled substance—is most assuredly critical
to the State’s case: without it a conviction is not statutorily possible. The State
made no showing that the testing analyst was unavailable, and defendant did not
have a prior opportunity to cross-examine the testing analyst. Because the evidence
at issue is directly prohibited by Bullcoming and is central to defendant’s
conviction, a violation of the Confrontation Clause occurred, and the violation was
not harmless beyond a reasonable doubt.
The majority in State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013)
(329PA11), upon which the majority here relies, held that the “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.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. In this case the majority
determines that the expert opinion was independent and the underlying
information relied upon was not offered for the truth of the matter asserted. This
holding contradicts the United States Constitution, United States Supreme Court
precedent, and this Court’s precedent.
To permit independent opinion testimony on a critical element of the offense
when that opinion is based on evidence presented at trial “not for the truth of the
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BEASLEY, J., dissenting
matter asserted” is to permit the North Carolina Rules of Evidence to preempt the
Confrontation Clause. Rules 703 and 705 of the North Carolina Rules of Evidence
generally allow expert testimony in the form of an opinion, including provision of
the information reasonably relied upon to reach the expert opinion. But these Rules
are entirely without effect when they contradict the Confrontation Clause. The
Supremacy Clause of the United States Constitution has long required, as
recognized by this Court on numerous occasions, such a hierarchy of authority:
This constitution, and the laws of the United States which
shall be made in pursuance thereof, and all treaties made,
or which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, any thing in
the constitution or laws of any state to the contrary
notwithstanding.
U.S. Const. art. VI, cl. 2; Stephenson v. Bartlett, 355 N.C. 354, 369, 562 S.E.2d 377,
388 (2002) (“When federal law preempts state law under the Supremacy Clause, it
renders the state law invalid and without effect.”). In sum, the majority’s opinion
bypasses the Confrontation Clause by using the North Carolina Rules of Evidence;
such an outcome is impermissible under the Supremacy Clause.
In Crawford the United States Supreme Court held that rules of evidence
cannot be used to escape the Confrontation Clause:
Where testimonial statements are involved, we do
not think the Framers meant to leave the Sixth
Amendment’s protection to the vagaries of the rules of
evidence, much less to amorphous notions of “reliability.”
Certainly none of the authorities discussed above
acknowledges any general reliability exception to the
common-law rule. Admitting statements deemed reliable
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BEASLEY, J., dissenting
by a judge is fundamentally at odds with the right of
confrontation. To be sure, the Clause’s ultimate goal is to
ensure reliability of evidence, but it is a procedural rather
than a substantive guarantee. It commands, not that
evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-
examination. The Clause thus reflects a judgment, not
only about the desirability of reliable evidence (a point on
which there could be little dissent), but about how
reliability can best be determined.
541 U.S. at 61 (emphasis added) (citations omitted) (overruling its prior decision in
Ohio v. Roberts, 448 U.S. 56 (1980), which permitted testimonial evidence to be
admitted so long as it was deemed reliable, regardless of whether there was an
opportunity for confrontation). Thus, not only did the Court hold that rules of
evidence are secondary to the Confrontation Clause, but the Court expressed that
the Confrontation Clause is concerned not just with whether the information was
reliable, but with whether the information can be determined to be truthful in open
court. The only way to make that determination is to confront the individual from
whom the information originated.
Here the majority relies on the North Carolina Rules of Evidence to admit
evidence about the identity of a chemical substance on the grounds that “basis
information” is admissible when an expert lays the foundation that the information
on which she relied is the same as that on which others in her field would rely in
forming an opinion on the identity of the substance. The first problem with this
rationale is that the majority focuses on whether the information was reliably
obtained and reliably used, or used in a reliable and common manner. This
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BEASLEY, J., dissenting
question is not among the concerns raised in Crawford that serve as the basis for
the Court’s application of the Confrontation Clause; instead, this question directly
aligns with the concerns of Ohio v. Roberts that Crawford overruled. See id.
Reliability of this kind is an evidentiary question. The Confrontation Clause
addresses a procedural question: whether the defendant has the opportunity to
determine, in front of the jury, if the information relied upon is reliable at all or is
in fact a lie. See id.; see also Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2715
(“[S]urrogate testimony of the kind [the testifying expert] was equipped to give
could not convey what [the testing analyst] knew or observed about the events his
certification concerned, i.e., the particular test and testing process he employed.
Nor could such surrogate testimony expose any lapses or lies on the certifying
analyst’s part.” (footnote omitted)).
Our Court has previously recognized this procedural concern. State v. Ward,
364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010) (“The practical effect of the Melendez-
Diaz ruling is that through cross-examination more light is being shed on the
procedures expert witnesses use to support their testimony. In some instances,
when practices are illuminated ‘in the crucible of cross-examination,’ their
shortcomings become apparent.” (citation omitted)); id. at 156, 694 S.E.2d at 752
(Newby, J., dissenting) (“The Confrontation Clause is a ‘procedural . . . guarantee.’
Those accused of criminal offenses are entitled to cross-examine the witnesses
against them.” (alteration in original) (internal citation omitted)). Furthermore, in
cases such as this, the ability to cross-examine the testifying expert does not
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BEASLEY, J., dissenting
adequately address the procedural concern at issue: whether the testing analyst
performed the tests correctly. See Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2716
(“[T]he 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.”). The likelihood of a
procedural violation becomes especially important when the evidence or information
in question goes to a critical element of the offense.
It is true that an expert would rely upon the tests performed by the testing
analyst, as relied on here by Agent Schell, to show the identity of a substance.
These tests comply with the generally accepted scientific methods of proving that a
substance is indeed an illicit drug. But this truth addresses an evidentiary question
of reliability and not the procedural one at issue in Confrontation Clause analysis.
With respect to the procedural concern, the testifying expert cannot verify that no
mistakes were made in the testing or that the results generated by the testing
analyst were not based on false information, error, or lies. This information cannot
be ascertained without the right to confront the testing expert. It is precisely
because of these lapses in procedure that the Confrontation Clause commands that
the State present the testing analyst to testify. Because the State did not present
such a witness in this case, it violated defendant’s Sixth Amendment rights.
While the majority here, relying on Ortiz-Zape, contends that Bullcoming is
distinguishable because the expert here is not a surrogate but is testifying to her
own “independent” opinion about the reports, Bullcoming is directly on point with
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this case. Nothing in Agent Schell’s opinion is “independent”; in fact, the veracity of
Agent Schell’s testimony is dependent on the validity and accuracy of Agent
Gregory’s testing methods. If Agent Gregory’s testing was faulty, Agent Schell’s
testimony is inaccurate. Thus, without Agent Gregory’s testimony, there is no
reliable way to determine that the identity of the substance to which Agent Schell is
testifying is accurate. The United States Supreme Court provided a very
appropriate visual in Bullcoming that describes exactly what the State is
attempting to do here and very clearly precludes it:
Most witnesses, after all, testify to their observations of
factual conditions or events, e.g., “the light was green,”
“the hour was noon.” Such witnesses may record, on the
spot, what they observed. Suppose a police report
recorded an objective fact—Bullcoming’s counsel posited
the address above the front door of a house or the read-out
of a radar gun. Could an officer other than the one who
saw the number on the house or gun present the
information in court—so long as that officer was equipped
to testify about any technology the observing officer
deployed and the police department’s standard operating
procedures? As our precedent makes plain, the answer is
emphatically “No.” See Davis v. Washington, 547 U.S.
813, 826, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)
(Confrontation Clause may not be “evaded by having a
note-taking police[ officer] recite the . . . testimony of the
declarant” (emphasis deleted)); Melendez-Diaz, 557 U.S.,
at ___, 129 S.Ct., at 2546 (KENNEDY, J., dissenting)
(“The Court made clear in Davis that it will not permit
the testimonial statement of one witness to enter into
evidence through the in-court testimony of a second.”).
Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2714-15 (alterations in original) (internal
citation omitted).
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Here, much like the radar gun hypothetical, Agent Schell is merely testifying
to the observations of another witness. Bullcoming directly forbids this. Id. Agent
Schell even admits on cross-examination to such a recitation of Agent Gregory’s
notes. In fact, the majority of Agent Schell’s testimony recites the recordation of
visual observations made by Agent Gregory, exactly like the Supreme Court’s radar
gun example. She testified with respect to the color tests: “In this particular test it
did not turn any color,” and, “It turned blue.” Again, Agent Schell testified: “Yes,
crosses were obtained. Those specific crosses were obtained.” These are visual
observations. There is no difference between this testimony and testifying, “It read
fifty-five miles per hour,” with respect to an officer’s notes about what he saw on the
radar gun. The only way to know the accuracy of the result of these tests is to
observe them. The same logic applies to the weight of the substance: “It had a
weight of 0.1 gram.” Agent Schell could not know this with any sense of
“independent” knowledge unless she personally verified that the scales were
calibrated, personally executed the testing protocol properly, and observed the
weight on the scale itself. In fact, the State’s phrasing of the questions to Agent
Schell indicates a request for exact recitation of Agent Gregory’s notes and visual
observations: “And from the notes that you retrieved were you able to determine
what the result was of this particular color test?”; “[W]ere you able to determine
what the result was of this particular test?”; “[D]id you see the results of this test?”
(Emphases added.) This testimony directly violates the rule in Bullcoming.
Whether referred to as an independent opinion or a peer review, testimony
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STATE V. BREWINGTON
BEASLEY, J., dissenting
regarding these matters could only be based on the analyst’s actual observance of a
factual and visual occurrence.
When a jury is capable of drawing the same conclusions as the substitute
expert if given the same information (i.e., the report), this is indicative that the
expert is merely parroting the testing analyst’s results. Here if the jury were
handed the report that stated the sample “turned blue” and told that blue indicated
the presence of cocaine, a jury would conclude that the sample was cocaine. No
expert knowledge is necessary and could not possibly produce an “independent”
opinion outside that provided in the report. We must not create a back door to
evade the Confrontation Clause by merely changing the diction from “surrogate” to
“independent opinion.”
Furthermore, there is no difference between handwritten notes to document
an officer’s observation of radar gun results and machine-produced data to
document the results of a chemical test prepared and set up by a live person. Both
leave room for falsification, entry error, sample error, or any number of other errors.
The majority in Ortiz-Zape declares that machine-generated results may not
operate as a witness against a defendant and thus are impervious to the
Confrontation Clause:
Because machine-generated raw data, “if truly machine-
generated,” are not a statement by a person, they are
“neither hearsay nor testimonial.” We note that
“representations[] relating to past events and human
actions not revealed in raw, machine-produced data” may
not be admitted through “surrogate testimony.”
Accordingly, consistent with the Confrontation Clause, if
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BEASLEY, J., dissenting
“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.1
Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___ (internal citations omitted). The same
majority reiterates this conclusion in State v. Brent, ___ N.C. ___, ___, ___ S.E.2d
___, ___ (2013) (“Thus, machine-generated raw data, if of a type reasonably relied
upon by experts in the field, may be admitted to show the basis of an expert’s
opinion.”). Yet, such data serves as a receipt of human action the same way a note
does.
In fact, the majority’s opinions completely obscure the very safeguard the
majority’s own rule regarding such machine-generated data puts in place: the
concerns of the Confrontation Clause are alleviated only when the data are “truly
machine-generated.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. It is precisely
that limitation that recognizes the procedural concern of the Confrontation Clause.
Because the majority ignores this limitation, as is apparent by its lack of analysis in
This assertion grows out of the majority’s reference to Justice Sotomayor’s
1
concurring opinion in Bullcoming, which notes that Bullcoming did not present a
question of an independent opinion or reliance on results that were purely machine-
generated. Id. at ___, 131 S. Ct. at 2722 (Sotomayor, J., concurring). Such a
reference provides no support to the majority’s position. This Court is not bound by
the dicta within a concurring opinion of a single Justice of the Supreme Court.
Further, the plurality opinion in Williams, authored by Justice Alito, made the
same attempt to distinguish its case from Bullcoming by using Justice Sotomayor’s
observation. Justice Alito declared, “We now confront that question.” Williams, ___
U.S. at ___, 132 S. Ct. at 2233. Yet, Justice Sotomayor joined Justice Kagan in the
dissent in Williams, declaring that a Confrontation Clause violation had occurred.
See id. at ___, 132 S. Ct. at 2264-65 (Kagan, J., dissenting). Thus, while Justice
Sotomayor may have observed that the question would be different when it involved
an “independent” opinion or machine-generated results, she declared that the
answer is the same.
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STATE V. BREWINGTON
BEASLEY, J., dissenting
Ortiz-Zape and in Brent, the majority obscures the fact that the Confrontation
Clause necessarily applies here. The Supreme Court made clear in Crawford that
reliability (an evidentiary concern) does not preclude the fact that the concern of the
Confrontation Clause (a procedural one) may still be present. See Crawford, 541
U.S. at 61. The Confrontation Clause is not concerned with whether the machine
itself reliably produced the results (the evidentiary concern); it is concerned with
whether the testing analyst actually followed a reliable procedure in order to allow
the machine to produce a reliable result (the procedural concern).
Here the majority concludes that the expert opinion was “independent” and,
by way of reference to the majority opinion in Ortiz-Zape, that the report was not
used for the truth of the matter asserted because it was only used to support this
“independent opinion” of a qualified expert. It is necessary to note that the majority
acknowledges that without qualifying as “basis information” for the expert’s
opinion, the information is “otherwise inadmissible.” Brewington, ___ N.C. at ___,
___ S.E.2d at ___; see also Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. This
inadmissibility stems directly from the fact that the evidence violates the
Confrontation Clause if it is used for the truth of the matter asserted. Thus, it is
necessary to determine whether the report was indeed used for the truth of the
matter asserted. This determination is informed by the critical role the report plays
in the State’s case and by the testimony.
In State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009) (per
curiam), this Court adopted the dissenting opinion from the Court of Appeals
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STATE V. BREWINGTON
BEASLEY, J., dissenting
concluding that chemical testing was required to identify a substance as powder
cocaine. Id. In Ward this Court extended that rule to cover pills requiring “very
technical and specific chemical designation[s]” that “imply the necessity of
performing a chemical analysis to accurately identify controlled substances.” Ward,
364 N.C. at 143, 694 S.E.2d at 744 (majority opinion) (alterations in original)
(citations and internal quotation marks omitted). Further,
[b]y imposing criminal liability for actions related to
counterfeit controlled substances, the legislature not only
acknowledged that their very existence poses a threat to
the health and well-being of citizens in our state, but that
a scientific, chemical analysis must be employed to
properly differentiate between the real and the
counterfeit. . . . As such, a scientifically valid chemical
analysis of alleged controlled substances is critical to
properly enforcing the North Carolina Controlled
Substances Act.
Id. at 143-44, 694 S.E.2d at 745. Thus, this Court has held that chemical testing is
required to establish the identity of any alleged controlled substance and that such
testing must be “scientifically valid.” Id. The State did not introduce any such
substantive evidence of chemical testing; thus, the Confrontation Clause was
violated.
In addition to conflicting with the precedent of this Court, the majority’s
opinion, through the majority opinion in Ortiz-Zape, relies on case law that is
without effect or weight here. First among these is the United States Supreme
Court’s recent decision in Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221 (2012).
In Williams the Supreme Court failed to reach a majority opinion. Instead, it
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STATE V. BREWINGTON
BEASLEY, J., dissenting
decided the case with a four-one-four plurality, with Justice Thomas concurring in
the judgment, but offering an alternative rationale. Justice Thomas directly
rejected the reasoning used by the plurality and its conclusion that the report was
not used for the truth of the matter asserted and instead concurred solely on the
basis that the report lacked the formality required of testimonial statements. Id. at
___, 132 S. Ct. at 2256 (Thomas, J., concurring in the judgment) (“[T]here was no
plausible reason for the introduction of Cellmark’s statements other than to
establish their truth.”). “When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds. . . .” Marks v. United States, 430 U.S. 188, 193
(1977) (citation and internal quotation marks omitted). In Williams the only
common, and thereby narrowest, ground between Justice Thomas’s concurrence and
the plurality opinion is that there is no Confrontation Clause violation in a case
having the exact fact pattern of Williams. Williams, thus, is simply not binding
upon this case.2
2 In fact, the only certainty that can be derived from Williams that is
applicable to this case is that, had the report in Williams possessed the testimonial
qualities of solemnity and formality that Justice Thomas was looking for, Justice
Thomas would have likely found a Confrontation Clause violation. See ___ U.S. at
___, 132 S. Ct. at 2259-61. Here the report was certified by Agent Gregory’s
supervisor and prepared for the purpose of serving as evidence against defendant.
There is no question that it is testimonial in nature, even under Justice Thomas’s
standards. See id.; Bullcoming, ___ U.S. at ___, ___, 131 S. Ct. at 2710, 2713-14
(holding a laboratory report that contained a “Certificate of Analyst” was
testimonial); Melendez–Diaz, 557 U.S. at 308, 310 (finding laboratory reports
testimonial when they were sworn to before a notary public by the testing analysts).
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STATE V. BREWINGTON
BEASLEY, J., dissenting
The majority next relies on State v. Fair, 354 N.C. 131, 557 S.E.2d 500
(2001), cert. denied, 535 U.S. 1114 (2002) and, by implication, also on State v.
Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009 (1985).
In Huffstetler this Court opined that “[t]he admission into evidence of expert opinion
based upon information not itself admissible into evidence does not violate the Sixth
Amendment guarantee of the right of an accused to confront his accusers where the
expert is available for cross-examination.” 312 N.C. at 108, 322 S.E.2d at 120
(citations omitted). In Fair this Court stated that “[a]n expert may properly base
his or her opinion on tests performed by another person, if the tests are of the type
reasonably relied upon by experts in the field.” 354 N.C. at 162, 557 S.E.2d at 522
(emphasis added) (citations omitted). The majority relies on these cases for its
position that the information upon which an expert relies to formulate his or her
opinion may be admitted as the basis for that opinion without violating the
Confrontation Clause because the defendant has the opportunity to cross-examine
the testifying expert on the substantive evidence, which is only the opinion of the
testifying expert.
Foremost, these cases predate Melendez-Diaz, Bullcoming, and this Court’s
own decision in State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (2009). Huffstetler
was decided in 1984, well before the Supreme Court’s 2004 ruling in Crawford that
changed the Confrontation Clause landscape. Fair, decided in 2001, also predates
Crawford. To the extent either conflicts with Crawford and its progeny, they are
overruled. With respect to Huffstetler, this conflict with Crawford is most apparent
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STATE V. BREWINGTON
BEASLEY, J., dissenting
in the references to reliability.
Ohio v. Roberts permitted the admission of testimony without confrontation
when the statements satisfied various indicia of reliability. 448 U.S. at 66. In
Crawford the Supreme Court unambiguously overruled Roberts, regardless of what
the Rules of Evidence may dictate. 541 U.S. at 60, 61, 63, 65, 68-69. Because this
Court’s entire evaluation of the Confrontation Clause claim in Huffstetler concerned
the reliability of the expert opinion and its status as an exception to the hearsay
rule, 312 N.C. at 106-08, 322 S.E.2d at 119-21 (concluding that because the
information was “inherently reliable” and “reasonably relied upon” by other experts
in the field there could be no violation of the Confrontation Clause (internal
citations omitted)), Crawford directly overrules any precedent set by Huffstetler,
making it entirely invalid for purposes of Confrontation Clause jurisprudence. In
turn, because this Court’s opinion in Fair relied almost exclusively on the rationale
developed in Huffstetler, Fair, 354 N.C. at 162-63, 557 S.E.2d at 522, Fair is also
void.
Further, Huffstetler and Fair are entirely distinguishable from this case. In
both, the testifying expert had actually seen and directly examined the sample in
question at some point. Fair, 354 N.C. at 163, 557 S.E.2d at 522 (noting that the
testifying expert physically examined the clothing cutouts and held them up to the
clothing to confirm from where they were cut); Huffstetler, 312 N.C. at 105-06, 322
S.E.2d at 119 (noting that the testifying expert had performed some of the tests on
the samples to determine the blood grouping). Thus, these testifying experts were
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STATE V. BREWINGTON
BEASLEY, J., dissenting
not working solely from the reports of the testing analysts and added some of their
own independent work to the information derived from the underlying reports. In
contrast, here the expert had only the report of the testing analyst, had never
personally tested the actual sample, and had never touched or seen it until trial.
Her opinion was entirely dependent upon the work of the testing analyst, in direct
contradiction to the holding in Bullcoming.
That the evidence in question here goes to the heart of what the State is
required to prove further distinguishes this case from those upon which the
majority relies. Williams dealt with DNA matching that amounted to “bolstering
evidence” to suggest that the defendant was the perpetrator. The defendant could
have been convicted without DNA evidence; thus, the DNA was not evidence needed
to prove an essential element of the crime. Similarly, Huffstetler and Fair were
both homicide cases in which the evidence in question was not direct proof required
to establish an essential element of the crime. See Fair, 354 N.C. at 136-39, 557
S.E.2d at 507-08 (examining testimony regarding DNA testing with respect to the
Confrontation Clause evidence, amid other evidence implicating the defendant in
the victim’s murder, including possession of the alleged murder weapon, use and
possession of the victim’s credit cards, lay witness testimony, and prior statements
made by the defendant); Huffstetler, 312 N.C. at 96-99, 105-06, 322 S.E.2d at 114-
15, 119 (addressing evidence of blood matches with respect to the Confrontation
Clause, amid a slew of other evidence implicating the defendant in the victim’s
murder, including the alleged murder weapon). Conversely, in Bullcoming the
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STATE V. BREWINGTON
BEASLEY, J., dissenting
evidence at issue went to prove an essential element of the crime—an elevated
blood alcohol level—without which the defendant could not be convicted.
Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2709 (“Principal evidence against
Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood-
alcohol concentration was well above the threshold for aggravated DWI.”). Thus,
this case is bound by Bullcoming.3
The parallel to Bullcoming becomes more apparent in the context of the
majority’s opinion in State v. Craven, ___ N.C. ___, ___ S.E.2d ___ (2013) (holding
that the testifying expert was a mere “surrogate”), decided concurrently with this
case. That the majority in Craven holds a Confrontation Clause violation occurred
under the precedent of Bullcoming, but fails to do so here, is a remarkable
demonstration of the semantics embodied in the term “independent opinion.” In
Craven the State asked the substitute analyst, who coincidentally was also Agent
Schell, whether she reviewed the reports of the testing analyst and whether she
agreed with the results of the report. She answered both questions affirmatively.
3 Our Court’s decision in Locklear is both valid and factually applicable to
this case as well. In Locklear this Court recognized the firm precedent set by
Crawford and concluded that it was a violation of the Confrontation Clause to admit
the opinion testimony of a forensic analyst as to the reports and findings of two
nontestifying forensic analysts with respect to the cause of death and identity of the
victim. 363 N.C. at 451-52, 681 S.E.2d at 304-05. This Court, however, found that
the violation was harmless because the State had presented “other evidence of” a
second, unrelated murder allegedly committed by the same defendant, and
“[n]either fact [provided by the testifying expert regarding the other victim] was
critical . . . to the State’s case against defendant for the murder [for which the
defendant was being tried].” Id. at 453, 681 S.E.2d at 305 (emphasis added). As
mentioned above, the evidence presented in this case through Agent Schell’s
testimony was most certainly “critical” to the State’s case.
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STATE V. BREWINGTON
BEASLEY, J., dissenting
Craven, ___ N.C. at ___, ___ S.E.2d at ___. That exact same procedure was followed
here: Agent Schell stated that she did not perform the tests, but reviewed the
reports of the testing analyst and agreed with the conclusions. In both Craven and
the case sub judice the information at issue goes to a critical element of the offense
charged. Yet, in Craven the fatal error to achieving the classification of
“independent opinion” as observed by the majority was that the State then asked,
“What was [the testing analyst’s] conclusion?” Here the State asked for Agent
Schell’s opinion. This is mere semantics.
In overruling Roberts, the Supreme Court made clear that the Confrontation
Clause is concerned with more than just hearsay. Crawford, 541 U.S. at 51 (“[N]ot
all hearsay implicates the Sixth Amendment’s core concerns. An off-hand,
overheard remark might be unreliable evidence and thus a good candidate for
exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses
the Confrontation Clause targeted. On the other hand, ex parte examinations might
sometimes be admissible under modern hearsay rules, but the Framers certainly
would not have condoned them.”). Thus, it is not enough to only examine the
diction that a witness employs to provide another’s statement; our courts must
examine the substance of what is said as well. When both opinions are determined
to be the same by the substitute expert’s own statement of agreement with the
testing analyst, and when the substitute analyst’s opinion is entirely dependent
upon the information provided by the testing analyst, there is no practical or logical
basis for excluding one opinion over the other: the substance is still a violation of the
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STATE V. BREWINGTON
BEASLEY, J., dissenting
Confrontation Clause because of the procedural concern raised under the
circumstances. The defendant’s constitutional right to confrontation must not hinge
on such a charade of diction.
Further, the majority’s inconsistency between Craven and this case actually
encourages the State to produce less evidence in order to secure a conviction while
circumventing the Confrontation Clause. This paradox is a result of the factual
nuance between the cases: in Craven the testimonial reports of the nontestifying
testing analyst were admitted into evidence without the pretext of their serving as
“basis information,” whereas here the reports were not admitted. The majority’s
opinion does not turn on this nuance4 but by virtue of the result, the majority
elevates this nuance to significance. Yet the form in which the testimonial
statements are admitted should have no bearing on our Confrontation Clause
analysis, especially when the information at issue goes to a critical element of the
offense charged.
Lab reports are “testimonial in nature.” Melendez-Diaz, 557 U.S. at 311
(concluding that “[lab] analysts’ affidavits were testimonial statements, and the
analysts were ‘witnesses’ for purposes of the Sixth Amendment”). When the
substance of the testimony presented by the substitute analyst is specifically
derived from the lab reports such that there can be no independent opinion because
4 The majority in Craven holds that it is not the admission of the reports that trigger
the Confrontation Clause, but the admission of the surrogate analyst’s statements
themselves: “[T]he statements introduced by Agent Schell constituted testimonial hearsay,
triggering the protections of the Confrontation Clause.” ___ N.C. at ___, ___ S.E.2d at ___.
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STATE V. BREWINGTON
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this information is admitted for the truth of the matter asserted, as demonstrated
above is the case here, the information too is testimonial in nature. The form does
not change the substance, nor does form change the original source. Whether the
information contained in the lab reports was admitted in written form, or in oral
form through Agent Schell’s testimony, our Court must address the Confrontation
Clause procedural concern. The jury still receives the same information without
presenting a defendant the opportunity to expose the potential falsities or
weaknesses therein. Consequently, it appears an even more egregious violation of
the Confrontation Clause to permit only oral testimony of this critical element of
the charged offense, eviscerating the importance of the admission of the signed lab
report, especially considering the statutory requirements.
The rule I propose today would not unreasonably impede the State’s
opportunity to offer proof of all necessary elements of the crime. Under Crawford
the State may utilize such testimonial evidence when it can show “unavailability
and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68. While
perhaps inconvenient, this is not too high a hurdle to impose to protect our citizens’
constitutional rights. See Melendez-Diaz, 557 U.S. at 325 (“The Confrontation
Clause may make the prosecution of criminals more burdensome, but that is equally
true of the right to trial by jury and the privilege against self-incrimination. The
Confrontation Clause—like those other constitutional provisions—is binding, and
we may not disregard it at our convenience.”). Moreover, I fear our lower courts will
be left with no guidance on what constitutes an “independent opinion” when data
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STATE V. BREWINGTON
BEASLEY, J., dissenting
are “truly machine-generated,” and when a violation of the Confrontation Clause
has occurred. The rule I propose would provide clear guidance to the lower courts
when determining what constitutes a violation of the Confrontation Clause,
consistent with the United States Constitution, the previous guidance of both this
Court and the United States Supreme Court, and common sense.
In the exercise of that rule, it is clear that today we are presented with a case
in which the State offered a testifying expert to parrot the report of the
nontestifying testing analyst in order to admit evidence of a critical element of the
offense charged. Today we are presented with a case that mimics Bullcoming.
Today we are presented with a case that clearly violates the Confrontation Clause.
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