State v. Craven , 367 N.C. 51 ( 2013 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 322PA10
FILED 27 JUNE 2013
STATE OF NORTH CAROLINA
v.
MARCUS ARNELL CRAVEN
On discretionary review pursuant to N.C.G.S. ' 7A-31 of a unanimous
decision of the Court of Appeals, 205 N.C. App. 393, 696 S.E.2d 750 (2010), vacating
in part and finding no error in part in judgments entered on 13 March 2009 by
Judge Kenneth Titus in Superior Court, Chatham County, and remanding for
resentencing. Heard in the Supreme Court on 13 February 2013.
Roy Cooper, Attorney General, by Daniel P. O’Brien, Assistant Attorney
General, for the State-appellant.
Anne Bleyman for defendant-appellee.
Law Offices of John R. Mills NPC, by John R. Mills; and Rudolf Widenhouse
& Fialko, by M. Gordon Widenhouse, for North Carolina Advocates for
Justice, amicus curiae.
JACKSON, Justice.
In this appeal we consider whether the admission of lab reports through the
testimony of a substitute analyst violated defendant’s Sixth Amendment right to
confront the witnesses against him. Because the testifying analyst did not give her
own independent opinion, but rather gave “surrogate testimony” reciting the testing
analysts’ opinions, we affirm the decision of the Court of Appeals holding that there
was a Confrontation Clause violation. See Bullcoming v. New Mexico, ___ U.S. ___,
STATE V. CRAVEN
Opinion of the Court
___, 131 S. Ct. 2705, 2716 (2011). Defendant is entitled to a new trial for the sale or
delivery charge arising from the offense date of 6 March 2008. However, because
the conspiracy convictions were not affected by the erroneous admission of the
substitute analyst’s testimony, we reverse the decision of the Court of Appeals
vacating those convictions and reinstate defendant’s conspiracy convictions arising
from the offense dates of 3 March and 6 March 2008.
The State’s evidence at trial tended to show the following: On 3 March 2008,
officers of the Chatham County Sheriff’s Department observed a controlled drug buy
between undercover informant Daniel Zbytniuk and Christina Marie Smith.
Defendant drove Smith in his mother’s car to the buy location. Smith testified that
she received crack cocaine from defendant, took a small portion of it for herself as
payment for making the handoff, and then gave Zbytniuk the remainder of the
substance in exchange for money. Smith then handed the money to defendant. On
6 March 2008, officers observed another buy arranged between Zbytniuk and Smith.
Similar to the 3 March 2008 buy, defendant drove Smith in his mother’s car, Smith
gave a substance she testified to be crack cocaine to Zbytniuk in exchange for
money, and Smith handed the money to defendant. On 21 March 2008, a third buy
was arranged between Zbytniuk and Smith, this time for a larger amount and at a
motel so that Zbytniuk could learn how to process crack cocaine. Officers set up
surveillance in another room across the parking lot. Defendant dropped Smith off
at the motel and left to get Zbytniuk’s cocaine. Defendant later returned to the
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STATE V. CRAVEN
Opinion of the Court
motel with cocaine, which he gave to Zbytniuk in exchange for money. Defendant
also brought baking soda and a cigar in a glass tube, which Smith used to show
Zbytniuk how to cook powder cocaine into crack cocaine. Defendant left to try to
find more cocaine, but was unable to do so. Smith then left in defendant’s mother’s
car to purchase cocaine, but the car broke down and she had to call Zbytniuk and
defendant to come pick her up. Officers arrested defendant as the pair were on
their way to pick up Smith.
On 6 October 2008, defendant was indicted in Chatham County for: (1)
conspiracy to sell or deliver cocaine and maintaining a place for the keeping of
controlled substances on 3 March 2008; (2) conspiracy to sell or deliver cocaine,
maintaining a place for the keeping of controlled substances, and sale or delivery of
cocaine on 6 March 2008; and (3) manufacturing cocaine, possession with intent to
manufacture, sell, or deliver cocaine, sale or delivery of cocaine, maintaining a place
for the keeping of controlled substances, and possession of drug paraphernalia on 21
March 2008. The State dismissed the charges of maintaining a place for the
keeping of controlled substances on 3 March and 6 March 2008 and the charge of
possession of drug paraphernalia on 21 March 2008.
At trial the State introduced Special Agent Kathleen Schell of the State
Bureau of Investigation as an expert in forensic chemistry. Agent Schell testified
about the identity, composition, and weight of the substances recovered on each of
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STATE V. CRAVEN
Opinion of the Court
the three buy dates. She personally had tested the sample from 21 March 2008.
However, Agents Tom Shoopman and Irvin Allcox had performed the testing on the
samples from 3 March and 6 March 2008. Defense counsel objected on Sixth
Amendment grounds, arguing that Agent Schell’s testimony and admission of the
relevant lab reports violated defendant’s right to confront the witnesses against
him. The trial court overruled defense counsel’s objection.
Defendant was convicted of multiple counts and sentenced to consecutive
terms of: (1) thirteen to sixteen months for the consolidated offenses of two counts
of conspiracy to sell or deliver cocaine on 3 March and 6 March 2008 and one count
of sale or delivery of cocaine on 6 March 2008; and (2) sixteen to twenty months for
the consolidated offenses of sale or delivery of cocaine, manufacturing cocaine,
possession with intent to manufacture, sell or deliver cocaine, and maintaining a
place for the keeping of controlled substances, all on 21 March 2008. Defendant
appealed to the Court of Appeals, which vacated the convictions for two counts of
conspiracy to sell or deliver cocaine on 3 March and 6 March 2008 and one count of
sale or delivery of cocaine on 6 March 2008. State v. Craven, 205 N.C. App. 393,
405, 696 S.E.2d 750, 757 (2010). The Court of Appeals found no error in the
convictions stemming from the events on 21 March 2008. Id. The State filed a
Petition for Discretionary Review with this Court, seeking review of the decision
vacating the 3 March and 6 March 2008 convictions.
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STATE V. CRAVEN
Opinion of the Court
In State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11), we
summarized the Supreme Court of the United States’ Confrontation Clause
jurisprudence in deciding whether a defendant’s Confrontation Clause rights were
violated when an expert witness gave her opinion that a substance was cocaine,
based upon testing performed by a non-testifying chemical analyst. There we held
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.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___, slip op. at
13 (June 26, 2013) (quoting N.C.G.S. § 8C-1, Rule 703 (2011)). “We emphasize[d]
that the expert must present an independent opinion obtained through his or her
own analysis and not merely ‘surrogate testimony’ parroting otherwise inadmissible
statements.” Id., slip op. at 13 (quoting Bullcoming, ___ U.S. at ___, 131 S. Ct. at
2710). Accordingly, we must determine whether the testimony objected to here was
an independent opinion obtained through Agent Schell’s own analysis or was merely
surrogate testimony repeating testimonial out-of-court statements.1 See id., slip op.
at 15 (discussing preservation of error).
1 Consistent with the approach adopted by the majority in Ortiz-Zape, we decline to
adopt the concurrence’s four-part test for determining whether there is a Confrontation
Clause violation.
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STATE V. CRAVEN
Opinion of the Court
Here, defense counsel objected to portions of Agent Schell’s testimony about
the substances recovered from the 3 March and 6 March 2008 buys. Regarding the
3 March 2008 sample, the State asked:
Q. Now did you also bring with you notes and
documentation for the date of offense March 3, 2008?
A. I did.
Q. And who—who completed that analysis?
A. Mr. Tom Shoopman completed that analysis.
....
Q. And did you bring his report?
A. I did.
Q. Did you have a chance to review it?
A. I have.
Q. Do you agree with its conclusions?
A. I do.
....
Q. What was Mr. Shoopman’s conclusion?
[Objection by defense counsel]
....
A. According to the lab report prepared by Tom
Shoopman, the results for State’s Exhibit Number . . . .
10 were cocaine base schedule two controlled substance
with a weight of 1.4 grams.
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Opinion of the Court
The lab report then was admitted into evidence.
Similarly, regarding the 6 March 2008 sample, the State asked:
Q. Now turning to State’s Exhibit Number 12 and
offense date March 6th of 2008, did you bring a report
from the SBI regarding that date of offense?
A. I did.
Q. Who conducted that analysis?
A. Mr. Irvin Allcox.
Q. And do you have that report in your hand?
A. I do.
Q. And do you have the underlying data supporting
that conclusion?
A. I do.
Q. And you do agree with the conclusion stated in that
report?
A. I do.
....
Q. And what conclusion did [Mr. Allcox] reach?
[Objection by defense counsel]
A. The item . . . . twelve was cocaine base, schedule
two controlled substance. And it had a weight of 2.5
grams.
That lab report also was admitted into evidence.
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STATE V. CRAVEN
Opinion of the Court
It is clear from this testimony that Agent Schell did not offer—or even
purport to offer—her own independent analysis or opinion on the 3 March and 6
March 2008 samples. Instead, Agent Schell merely parroted Agent Shoopman’s and
Agent Allcox’s conclusions from their lab reports. Like the lab report in Bullcoming,
these lab reports contained “[a]n analyst’s certification prepared in connection with
a criminal investigation or prosecution.” Bullcoming, ___ U.S. at ___, 131 S. Ct. at
2713-14. Specifically, Agent Shoopman’s and Agent Allcox’s certifications stated:
“This report represents a true and accurate result of my analysis on the item(s)
described.” There is no doubt that the lab reports were “document[s] created solely
for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, [and] rank[ ]
as testimonial.” Id. at ___, 131 S. Ct. at 2717 (quoting and citing Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 2532 (2009)). Thus, the
statements introduced by Agent Schell constituted testimonial hearsay, triggering
the protections of the Confrontation Clause. “Absent a showing that [Agents
Shoopman and Allcox] were unavailable to testify at trial and that [defendant] had
a prior opportunity to cross-examine them, [defendant] was entitled to ‘ “be
confronted with” ’ the [agents] at trial.” Melendez-Diaz, 557 U.S. at 311, 129 S. Ct.
at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1365
(2004)); see also Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2710. Here the State did
not show that Agents Shoopman and Allcox were unavailable and that defendant
had a prior opportunity to cross-examine them. Accordingly, admission of Agent
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STATE V. CRAVEN
Opinion of the Court
Shoopman’s and Agent Allcox’s testimonial conclusions through Agent Schell’s
surrogate testimony violated defendant’s Sixth Amendment right to confrontation.
See Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2710.
Having determined that admission of the out-of-court testimonial statements
from the 3 March and 6 March 2008 lab reports was error, we now must determine
whether that error was harmless beyond a reasonable doubt. See N.C.G.S. § 15A-
1443(b) (2011).
With regard to the convictions for conspiracy to sell or deliver cocaine on 3
March and 6 March 2008, we reverse the decision of the Court of Appeals vacating
those convictions. “A criminal conspiracy is an agreement between two or more
people to do an unlawful act.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833,
835 (1991). It is not necessary for the unlawful act to be completed. Id. “As soon as
the union of wills for the unlawful purpose is perfected, the offense of conspiracy is
completed.” Id. Agent Schell’s testimony regarding the substances obtained on 3
March and 6 March 2008 was not necessary for the State to prove beyond a
reasonable doubt that defendant conspired to sell or deliver cocaine. Therefore, the
erroneous admission of such testimony was harmless as to defendant’s convictions
for conspiracy to sell or deliver cocaine on 3 March and 6 March 2008. Accordingly,
we instruct the Court of Appeals to reinstate these convictions.
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STATE V. CRAVEN
Opinion of the Court
With regard to the remaining conviction for sale or delivery of cocaine on 6
March 2008, the six participating members of the Court are equally divided on
whether the error was harmless beyond a reasonable doubt. Consequently, the
decision of the Court of Appeals, which held the error was reversible, remains
undisturbed and stands without precedential value. See, e.g., Goldston v. State, 364
N.C. 416, 700 S.E.2d 223 (2010) (per curiam).
Nevertheless, the remedy ordered by the Court of Appeals was erroneous as a
matter of law. Instead of vacating defendant’s conviction for sale or delivery of
cocaine, the Court of Appeals should have ordered a new trial. See, e.g., State v.
Littlejohn, 264 N.C. 571, 574, 142 S.E.2d 132, 134-35 (1965) (concluding that the
defendants were entitled to a new trial, not dismissal of the charges against them,
because the trial court, in denying their motion for nonsuit, acted upon incompetent
evidence). Therefore, we reverse the Court of Appeals’ opinion with respect to the
remedy and order a new trial on the sale or delivery conviction dated 6 March 2008.
The decision of the Court of Appeals regarding defendant’s remaining convictions
remains undisturbed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Justice BEASLEY did not participate in the consideration or decision of this case.
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HUDSON, J., concurring
Justice HUDSON concurring in the result.
Though the majority here reaches the correct result, it does so by relying on
State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11), and by utilizing
an approach which in my view is unnecessarily broad and confusing. I conclude
that in this slice of cases—in which certified lab reports prepared for this
prosecution are entered into evidence through a surrogate witness who was not
involved in the testing—the approach can be quite simple. As such, I write
separately to set out that approach as dictated by the United States Supreme Court
in Melendez-Diaz and Bullcoming. Therefore, I respectfully concur in the result.
Because I have summarized the development of the Supreme Court’s recent
Sixth Amendment Confrontation Clause jurisprudence in the dissenting opinion in
Ortiz-Zape, I will not do so again here. See Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d
at ___ (Hudson, J., dissenting). But because the majority’s opinion does not offer
the necessary discussion of the confrontation issues in this case but instead turns on
whether the testimony fits under the umbrella of “independent opinion” the
majority has constructed in Ortiz-Zape, I cannot agree with its reasoning here. I
will endeavor to fill in the missing pieces of the analysis and offer a methodical
approach that is simple to apply to future cases within this easily definable
category.
Though the majority does not clearly explain this, two separate Confrontation
Clause violations arise here: first, the admission of the lab reports without
accompanying testimony by the analyst who prepared them; and second, admission
STATE V. CRAVEN
HUDSON, J., concurring
of Agent Schell’s testimony based entirely on her review of the lab reports. While
the two are closely connected in this case, they require separate analyses for future
cases that may involve one or the other.
First, we examine the admission of the lab reports themselves for
constitutional error. “As a rule, if an out-of-court statement is testimonial in
nature, it may not be introduced against the accused at trial unless the witness who
made the statement is unavailable and the accused has had a prior opportunity to
confront that witness.” Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct.
2705, 2713 (2011). There is no question that the lab reports are out-of-court
statements and that the witnesses (Tom Shoopman and Irvin Allcox) who made
those statements did not testify. In addition, the State made no showing that those
witnesses were unavailable or that defendant had a prior opportunity to cross-
examine them. The only question remaining from the Bullcoming rule quoted
above, then, is whether the lab reports are “testimonial in nature.” Id. at ___, 131
S. Ct. at 2713. Applying the analysis from Melendez-Diaz and Bullcoming, I
conclude that the reports are undoubtedly testimonial and were prepared solely for
the prosecution of this defendant.2 As such, the testing analysts are witnesses
2 Although Williams v. Illinois does not control here because it involved a report not
prepared for that particular prosecution, the four-member plurality’s opinion noted what
distinguished that case from Bullcoming and Melendez-Diaz: “In those cases, the forensic
reports were introduced into evidence, and there is no question that this was done for the
purpose of proving the truth of what they asserted: in Bullcoming that the defendant's
blood alcohol level exceeded the legal limit and in Melendez–Diaz that the substance in
question contained cocaine. Nothing comparable happened here.” Williams v. Illinois, ___
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HUDSON, J., concurring
against defendant whom he is entitled to confront under the Sixth Amendment.
In Melendez-Diaz v. Massachusetts the Supreme Court opined that
“certificates” of lab analysts were affidavits and therefore, testimonial. 557 U.S.
305, 310, 129 S. Ct. 2527, 2532 (2009). Further, the Court found that the
certificates were “incontrovertibly a solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” Id. (citations and internal quotation
marks omitted). In Bullcoming the Supreme Court refused to distinguish between
the “sworn” certificates in Melendez-Diaz and the “unsworn” lab reports in that
case. Instead, the Court noted that “[i]n all material respects, the laboratory report
in this case resembles those in Melendez–Diaz.” Bullcoming, ___ U.S. at ___, 131 S.
Ct. at 2717. The Court went on to conclude that the lab reports were testimonial,
stating that “[a] document created solely for an ‘evidentiary purpose,’ . . . made in
aid of a police investigation, ranks as testimonial.” Id. at ___, 131 S. Ct. at 2717
(citing Melendez-Diaz, 557 U.S. at 310-11, 129 S. Ct. at 2532). The same analysis
applies here: the lab reports were created solely for the evidentiary purpose of
establishing or proving that the substances in question were in fact cocaine in the
State’s case against this defendant. The forms at issue state near the bottom, in all
capitals, that “THIS REPORT IS TO BE USED ONLY IN CONNECTION WITH
AN OFFICIAL CRIMINAL INVESTIGATION.” Directly under that statement is
the printed attestation that: “This report represents a true and accurate result of
U.S. ___, ___, 132 S. Ct. 2221, 2240 (2012) (plurality).
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HUDSON, J., concurring
my analysis on the item(s) described,” followed by a signature. State’s Exhibit 29,
the analysis of State’s Exhibit 10 (from the 3 March 2008 buy) is signed by “T.E.
Shoopman”; State’s Exhibit 30, the analysis of State’s Exhibit 12 (from the 6 March
2008 buy) is signed by “Irvin Lee Allcox.”
There can be no question that these lab reports are testimonial in nature.
Because both reports were offered and received into evidence through Agent Schell’s
testimony without any limitation on purpose, over defendant’s objection based on
the Confrontation Clause, their admission into evidence without testimony from the
testing analysts was a clear violation of the Confrontation Clause under
Bullcoming.3 This error allowed admission of the essential evidence of a central
element of the charge of sale or delivery of cocaine, namely, that the substance was
cocaine. As such, the error cannot be considered harmless beyond a reasonable
doubt unless there was other, independent evidence to establish the same crucial
fact.
Second, then, we must examine Agent Schell’s testimony regarding her
review of the lab reports. The decision in Bullcoming leaves room for an expert who
did not conduct the testing in question to offer an “independent opinion” on the fact
at issue. See ___ U.S. at ___, 131 S. Ct. at 2716 (noting that the State did not
3 State law provides that the State may properly introduce the report without the
testimony of the original testing analyst if the State gives written notice to the defendant
that it intends to do so and the defendant does not object in a timely fashion. N.C.G.S. § 90-
95(g) (2012). The Supreme Court has endorsed such statutory waiver of confrontation
rights in this context. See Melendez-Diaz, 557 U.S. at 326-27, 129 S. Ct. at 2540-41. The
State did not make use of subsection 90-95(g) here.
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HUDSON, J., concurring
“assert that [the substitute expert] had any ‘independent opinion’ concerning
Bullcoming’s [blood alcohol content]”). Justice Sotomayor emphasized that very
point in her concurrence. Id. at ___, 131 S. Ct. 2722 (Sotomayor, J., concurring)
(stating that “this is not a case in which an expert witness was asked for his
independent opinion about underlying testimonial reports that were not themselves
admitted into evidence”). Despite the erroneous admission of the lab reports here,
the State’s case could perhaps have been salvaged if Agent Schell had presented
such an independent expert opinion regarding the identity of the chemical
substance. She did not.
When considering whether admission of an expert witness’s opinion based on
underlying lab reports is constitutionally permissible, I apply a methodical
approach. This analysis is discussed at length in the dissenting opinion in Ortiz-
Zape, ___ N.C. at ___, ___ S.E.2d at ___ (Hudson, J., dissenting), so I will abbreviate
it here. First, we consider whether the underlying lab reports are testimonial—if
they are not, there is no Confrontation Clause violation. Second, we examine the
identity of the witness testifying based on the reports—if the original testing
analyst does not appear as a witness, and the State does not show that she was
unavailable and that defendant had a prior opportunity to cross-examine her,
neither the report itself nor the report’s conclusions can be admitted as evidence.
Third, we consider whether the testifying analyst has offered an independent
opinion based on something other than her review of the reports. When the State
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HUDSON, J., concurring
offers an expert witness ostensibly testifying to an independent opinion based on
review of inadmissible testimonial lab reports, we must carefully examine the
testimony of the expert to determine whether she offers a truly independent expert
opinion or merely acts as the surrogate analyst forbidden by Bullcoming.
The majority held in Ortiz-Zape 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.” Ortiz-Zape,
___ N.C. at ___, ___ S.E.2d at ___ (majority opinion) (quoting N.C.G.S. § 8C-1, Rule
703 (2011)). The majority then “emphasize[d] that the expert must present an
independent opinion obtained through his or her own analysis and not merely
‘surrogate testimony’ parroting otherwise inadmissible statements.” Id. at ___, ___
S.E.2d ___ (citation omitted). The rule from Ortiz-Zape is incomplete at best,
because it takes no account of the purpose for which the report was prepared and
whether it is offered for its truth. See Williams v. Illinois, ___ U.S. ___, ___, ___, 132
S. Ct. 2221, 2235, 2243 (2012) (plurality). And even if the statements from Ortiz-
Zape appear reasonable, in reality the majority has created a rule under which the
State can circumvent the Confrontation Clause simply by asking the testifying
analyst the question: “What is your independent expert opinion?” See Ortiz-Zape,
___ N.C. at ___, ___ S.E.2d at ___ (finding no confrontation problem when expert
witness reported no independent analysis or knowledge beyond that presented in
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HUDSON, J., concurring
the inadmissible report, but was asked: “What is your independent expert
opinion?”); State v. Brewington, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2013)
(235PA10) (finding no confrontation problem when expert witness 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”). The
majority’s rule, as applied in Ortiz-Zape and Brewington, does not actually require
any independent analysis or work on the expert’s part. The expert may simply
review the nontestifying analyst’s report and adopt its conclusions as her own. That
rule is flatly inconsistent with United States Supreme Court precedent on this
issue. I would instead insist that the expert have actually done independent
analysis—either by doing his or her own analysis of raw data obtained by the
nontestifying analyst or (preferably) retesting the substance and reporting his or
her own results. Otherwise, the Sixth Amendment gives defendant the right to
confront the testing analyst by cross-examination.
The final step in the analysis is to determine whether any preserved
constitutional error is harmless beyond a reasonable doubt. The State bears the
burden of making this showing, which generally requires that “overwhelming”
evidence of guilt remain after removal of the constitutionally problematic evidence.
See State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988).
I now apply that analytical framework here. As discussed above, there is no
question that the lab reports were created solely to be used as evidence in this
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HUDSON, J., concurring
prosecution and are therefore testimonial. Further, the original testifying analysts
did not testify and the State made no effort to show that they were unavailable or
subject to prior cross-examination. Because Agent Schell testified based on Agent
Shoopman’s and Agent Allcox’s analyses and reports, we examine whether she has
offered a truly independent opinion or has merely agreed with the nontestifying
analysts’ conclusions, which are testimonial opinions on a key element of the case
against defendant. The latter violates the Confrontation Clause. See Bullcoming,
___ U.S. at ___, 131 S. Ct. at 2716.
The testimony quoted by the majority speaks for itself: Agent Schell testified
specifically to the conclusions of two nontestifying analysts and offered no
independent analysis or opinion at all. The only opinion she was asked to give was:
“Do you agree with the conclusion stated in that report?” There is nothing
independent about agreeing with a conclusion in an inadmissible report. This
testimony is functionally indistinguishable from the testimony prohibited in
Bullcoming, in that it deprives defendant of any meaningful cross-examination
regarding either agent’s testing procedures. Because Agent Schell did not observe
the testing by Agent Shoopman or Agent Allcox, like the surrogate analyst in
Bullcoming, she could not be cross-examined about “what [either analyst] knew or
observed about the events [their reports] concerned, i.e., the particular test and
testing process [they] employed.” Id. at ___, 131 S. Ct. at 2715. “Nor could such
surrogate testimony expose any lapses or lies on [either Agent Shoopman’s or Agent
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HUDSON, J., concurring
Allcox’s] part.” Id. at ___, 131 S. Ct. at 2715. Agent Schell’s status as an expert
witness does not allow the State to bypass the Confrontation Clause by simply
asking her to read the conclusions of nontestifying witnesses into evidence. Nor has
she provided any independent expert opinion—developed through her own
analysis—for which the lab reports were a basis. Agent Schell’s testimony
regarding the nontestifying analysts’ conclusions about the substances involved in
the 3 March and 6 March 2008 transactions violates defendant’s Confrontation
Clause rights.
Having determined that the lab reports are testimonial; that Agent Schell did
not personally conduct or participate in the testing on the 3 March and 6 March
2008 samples, and the State did not show that the testing analysts were
unavailable and that defendant had a prior opportunity to cross-examine; and that
Agent Schell offered no independent opinion based on the lab reports, I agree with
the majority’s ultimate holding that Agent Schell’s testimony violates the
Confrontation Clause and admission of her opinions was prejudicial error as to the
sale or delivery conviction. I therefore concur in the result.
Chief Justice PARKER joins in this concurring opinion.
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