State v. Williams , 367 N.C. 64 ( 2013 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 533PA10
FILED 27 JUNE 2013
STATE OF NORTH CAROLINA
v.
JARVIS LEON WILLIAMS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous
decision of the Court of Appeals, 208 N.C. App. 422, 702 S.E.2d 233 (2010), finding
prejudicial error in a judgment entered on 1 September 2009 by Judge Calvin E.
Murphy in Superior Court, Mecklenburg County, and ordering that defendant
receive a new trial. Heard in the Supreme Court on 12 February 2013.
Roy Cooper, Attorney General, by Amy Kunstling Irene and Daniel P. O’Brien,
Assistant Attorneys General, for the State-appellant.
Don Willey for defendant-appellee.
PARKER, Chief Justice.
The issue in this case is whether the Court of Appeals erred by granting
defendant a new trial on the basis that defendant’s Sixth Amendment
Confrontation Clause rights were violated. For the reasons stated herein, the
decision of the Court of Appeals is reversed.
Defendant was arrested following a brief investigation that resulted in the
discovery of cocaine in a flower pot near where defendant was standing. Defendant
STATE V. WILLIAMS
Opinion of the Court
was indicted for possession with intent to sell or deliver cocaine and attaining
habitual felon status. The jury convicted defendant of the cocaine charge, and
defendant thereafter admitted his habitual felon status. The trial court entered
judgment sentencing defendant to 107 to 138 months of imprisonment. At the
conclusion of the trial proceedings, defendant orally entered his notice of appeal to
the Court of Appeals.
At trial the State’s evidence tended to show the following: On 2 April 2008,
Sergeant Brian Scharf of the Charlotte-Mecklenburg Police Department (CMPD)
received a telephone call from a confidential informant stating that a black male
wearing all black and having long dreadlocks was selling cocaine from the porch of
429 Heflin Street. The informant said the cocaine would be in a flower pot hanging
from the porch ceiling. Sergeant Scharf and Officer James Gilliland drove to the
reported location, where they observed defendant, who matched the description
provided by the informant. The officers also observed a flower pot hanging from the
porch ceiling. Sergeant Scharf asked defendant if defendant had been selling crack
cocaine, and defendant denied that he had been doing so. Both officers saw a clear
plastic bag sticking out of the flower pot. Based on Sergeant Scharf’s experience as
a narcotics officer, he knew that clear plastic bags are the predominant means of
packaging illegal narcotics. Sergeant Scharf handcuffed defendant, retrieved the
bag from the flower pot, and then observed inside the bag a substance that, based
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Opinion of the Court
on his training and experience, he believed to be crack cocaine. Sergeant Scharf
also searched defendant, finding $195 in cash in his pocket.
The officers transported defendant to the police station, where they
interviewed him after he waived his Miranda rights. Defendant said that a man
named Chris had left the crack cocaine there for him to sell and that he had sold
some that day. Sergeant Scharf prepared a written statement to that effect, which
defendant reviewed and signed. The written statement declared:
The cocaine that officer Scharf found at 429 Heflin St was
put there by a black male named “Chris.” He put it there
to sell it. When I got there “Chris” told me the Cocaine
was there so I could sell it for him until he got back. I sold
about $30.00–40.00 worth today. The Cocaine was not
mine. The Cocaine was in a clear plastic bag in a flower
pot hanging from the porch ceiling.
The State presented Ann Charlesworth of the CMPD Crime Laboratory as an
expert in forensic chemistry. Charlesworth testified that the crime lab is
accredited. Charlesworth also testified to the crime lab’s standard practices and
procedures. Specifically, she testified to procedures regarding the chain of custody
of suspected controlled substances, the chemical analysis of suspected controlled
substances, the recording and reporting of chemical analysis results and
conclusions, and the peer review process to review the results and conclusions of the
chemical analysis.
Charlesworth testified that after an analyst receives a substance to be
tested, the analyst subjects it to two rounds of testing: a preliminary test followed
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Opinion of the Court
by a confirmatory test. The preliminary test is generally a “color test.” There are
different color tests for different controlled substances. A positive test result for a
color test designed for a specific controlled substance indicates that the tested
substance is likely to be the specific controlled substance for which the test is
designed. Once a positive color test result is obtained, a confirmatory test is
conducted using a gas chromatograph mass spectrometer (GC Mass Spec). The data
from the GC Mass Spec would then be compared with a standard from the crime
lab’s library to determine if the substance is the substance suggested by the color
test.
The crime lab’s procedures require analysts to record the results of their
analysis and their conclusions in a specific manner. The results of the color test are
manually entered into a Chemistry Drug Worksheet, and the machine-generated
results produced by the GC Mass Spec are printed. Analysts enter their conclusions
as to the identity of the tested substances in a lab report, which is used by “the
police and the attorneys.” The Drug Chemistry Worksheet, the GC Mass Spec
printout, and the lab report are placed in a file that corresponds to the case at issue.
The crime lab’s procedures also mandate peer review of an analyst’s results
and conclusions. Once an analyst has completed a file, the analyst transfers the file
to another analyst, who reviews the entire file to see if that analyst comes to the
same conclusion. The second analyst then initials and dates the file to indicate
concurrence with the results.
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STATE V. WILLIAMS
Opinion of the Court
Charlesworth was asked to review for trial the file corresponding to the
substance seized by Sergeant Scharf. DeeAnne Johnson, a chemist who no longer
works for the crime lab, performed the analysis of the substance recovered from the
flower pot. Charlesworth did the same type of review that she would have done if
she had been the peer reviewer. The tests performed by Johnson were “the same
tests that [Charlesworth] and other experts in the field reasonably rely upon as to
forming an opinion as to the weight and nature of the substance tested.” After
Charlesworth described her review of the file, the prosecutor asked:
[B]ased on your training and experience in the field of
forensic chemistry and your course of your employment at
CMPD and in Pennsylvania and your review of this case
file, did you form your own expert opinion as to the
substance that was present and the weight in this case?
Over defendant’s objection, Charlesworth declared, “The substance was cocaine and
it was 0.99 grams.”
Next, the prosecutor moved to admit the Drug Chemistry Worksheet, the GC
Mass Spec printout, and the lab report into evidence “as illustrative of Ms.
Charlesworth’s opinion in this case.” Over defendant’s objection, the trial court
admitted the exhibits “for the purpose of illustrating the testimony of this witness
in establishing what she relied upon in formulating her own opinion about the
evidence in this case.” The trial court instructed the jury that it “may consider [the
exhibits] for that purpose, or those purposes, and only that purpose.”
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STATE V. WILLIAMS
Opinion of the Court
Defendant testified on his own behalf. Defendant testified that on 2 April
2008 he went to 429 Heflin Street. Defendant stated he knew that drug selling,
prostitution, and gambling went on at that house. On the porch, defendant met a
black male who said his name was Chris. Defendant testified that Chris repeatedly
asked defendant to sell crack cocaine for him, but defendant refused each time.
Before Chris left the house, he told defendant that the drugs were in the flower pot,
gave defendant twenty dollars, and said, “[M]ake a sale for me until [I get] back.”
According to defendant, shortly after Chris left, a man pulled up in a truck asking
for Chris. Defendant told the man that Chris had left. Then defendant “got the
drugs” from the flower pot and gave the man the drugs in exchange for forty dollars.
Defendant testified that as soon as the man in the truck left, Sergeant Scharf and
Officer Gilliland pulled up to the house. Defendant testified that while being
interviewed by Sergeant Scharf after waiving his Miranda rights, he said, “[T]he
cocaine in the flower pot wasn’t mine, it was a guy named Chris.” Defendant also
informed Sergeant Scharf that he “wasn’t intending on selling any cocaine that day,
and [he] was tricked by Chris.”
As noted above, the jury convicted defendant of the cocaine charge, and
defendant thereafter admitted his habitual felon status. On appeal to the Court of
Appeals, defendant argued that Charlesworth’s testimony regarding the results of a
chemical analysis performed by Johnson violated his rights guaranteed by the
Confrontation Clause of the Sixth Amendment to the United States Constitution.
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STATE V. WILLIAMS
Opinion of the Court
Relying heavily on its analysis of the Confrontation Clause in State v. Brewington,
204 N.C. App. 68, 693 S.E.2d 182 (2010), rev’d, ___ N.C. ___, ___ S.E.2d ___ (2013)
(No. 235PA10), the unanimous court below reasoned that admission of
Charlesworth’s testimony was error. State v. Williams, 208 N.C. App. 422, 427, 702
S.E.2d 233, 237-38 (2010). Specifically, the Court of Appeals reasoned that because
“the report detailing the tests done by Johnson and then ‘peer reviewed’ and
testified about by Charlesworth is testimonial,” “nothing in the record support[s]
any conclusion that defendant was given the opportunity to cross-examine
Johnson,” and “Charlesworth’s testimony detailing her ‘peer review’ was merely a
summary of the underlying analysis done by Johnson,” admission of the testimony
at issue was error. Id. at 426-27, 702 S.E.2d at 236-38. The court below next
determined that the error was not harmless beyond a reasonable doubt and granted
defendant a new trial. Id. at 427-28, 702 S.E.2d at 238. The court reasoned that
without Charlesworth’s testimony as to the chemical composition of the substance
seized, the State did not meet its burden of “present[ing] evidence as to the chemical
makeup of the substance.” Id. at 428, 702 S.E.2d at 238 (citing, inter alia, State v.
Nabors, 207 N.C. App. 463, 471, 700 S.E.2d 153, 158 (2010), rev’d, 365 N.C. 306, 718
S.E.2d 623 (2011)). On 4 October 2012, this Court allowed the State’s petition for
discretionary review.
Before this Court the State argues that the Court of Appeals erred by holding
that there was a Confrontation Clause violation since Charlesworth testified to her
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Opinion of the Court
own opinion about the identity of the controlled substance based on the data and
report of another expert analyst and the report itself was admissible as the basis for
the testifying expert’s opinion. The State further argues that the Court of Appeals
erred in that any error was harmless beyond a reasonable doubt. We agree with the
State that even if admission of the testimony and exhibits at issue was error, any
error was harmless beyond a reasonable doubt. Accordingly, we reverse the Court
of Appeals without addressing whether defendant’s Sixth Amendment rights were
violated.
“A violation of the defendant’s rights under the Constitution of the United
States is prejudicial unless the appellate court finds that it was harmless beyond a
reasonable doubt. The burden is upon the State to demonstrate, beyond a
reasonable doubt, that the error was harmless.” N.C.G.S. § 15A-1443(b) (2011).
Defendant’s trial testimony was not that the substance was not cocaine, but rather
that “the cocaine in the flower pot wasn’t mine” and Chris had tricked him into
selling it. Because defendant testified in his own defense that the seized substance
was cocaine and that he had been selling it, any alleged error in admitting
Charlesworth’s testimony and the related exhibits was harmless beyond a
reasonable doubt. See State v. Nabors, 365 N.C. 306, 312-13, 718 S.E.2d 623, 627
(2011).
For the reasons stated herein, the decision of the Court of Appeals is
reversed.
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Opinion of the Court
REVERSED.
Justice BEASLEY dissenting.
For the reasons stated in my dissent in State v. Brewington, ___ N.C. ___, ___
S.E.2d ___ (2013), I respectfully dissent. I would affirm the decision of the Court of
Appeals granting defendant a new trial. I would hold that, as prohibited by the
Confrontation Clause under Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct.
2705 (2011), the expert testimony in this case amounts to mere surrogate testimony
being used to explicitly introduce critical evidence of an element of the charged
offense, and that this constitutional violation was not harmless beyond a reasonable
doubt. The majority relies on State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011),
to hold that defendant’s use of the word “cocaine” alleviates any error presented by
the failure to offer a competent expert witness to confirm the identity of the
substance at issue. Nabors directly conflicts with the rulings in State v. Llamas-
Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009) (per curiam), and State v. Ward, 364
N.C. 133, 694 S.E.2d 738 (2010). As such, Nabors should be narrowly construed.
Contrary to the majority’s position, this case does not fall within the narrow bounds
of Nabors.
This case is distinguishable from Nabors in several respects. First, the
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BEASLEY, J., dissenting
standard of review in Nabors was different from that presented here. In Nabors
this Court reviewed for plain error. 365 N.C. at 311-13, 718 S.E.2d at 626-27.
Thus, the burden was on the defendant to prove that the jury probably would have
reached a different result absent the error. State v. Lawrence, 365 N.C. 506, 518,
723 S.E.2d 326, 334 (2012). This case, however, requires review under the
harmless beyond a reasonable doubt standard.
When violations of a defendant’s rights under the United
States Constitution are alleged, harmless error review
functions the same way in both federal and state courts:
“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.” In other
words, an error under the United States Constitution will
be held harmless if “the jury verdict would have been the
same absent the error.” Under both the federal and state
harmless error standards, the government bears the
burden of showing that no prejudice resulted from the
challenged federal constitutional error.
Id. at 513, 723 S.E.2d at 331 (alteration in original) (citations omitted). Thus, here
the State bears the burden to show that no harm resulted from the error. The
difference between these standards is marked and is determinative here.
Second, Nabors involved an appeal from the trial court’s denial of defendant’s
motion to dismiss for insufficient evidence on the bases that the State failed to
provide chemical testing and that all identification was based on lay opinion
testimony by the officers. 365 N.C. at 310-11, 718 S.E.2d at 626-27. Part of this
review mandates that “both competent and incompetent evidence that is favorable
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BEASLEY, J., dissenting
to the State . . . be considered by the trial court in ruling on a defendant’s motion to
dismiss.” Id. at 312, 718 S.E.2d at 627 (emphasis added) (citations omitted). By
contrast, the challenge here asserts a Confrontation Clause violation—the
deprevation of a fundamental right. We do not need to, and in fact should not,
consider incompetent evidence in determining whether defendant suffered any
harm as a result of this violation of his constitutional right to confrontation.
Under the standard of review in Nabors, the Court held that the lay witness
testimony by defendant’s friend that the substance was cocaine was “an
independent basis for upholding the trial court’s denial of the motion.” Id. at 313,
718 S.E.2d at 627. While one might assume this to be the same as stating that it is
sufficient to provide lay witness testimony regarding the chemical identity of the
crack cocaine at issue here, the Court then directly knocked this assumption down
by declaring that it would not decide whether testing is required. Id. The Court in
Nabors found it unnecessary to do so precisely because the standard of review was
plain error: “Assuming arguendo that admission of the lay testimony was error,
defendant cannot satisfy his burden of showing plain error inasmuch as his own
evidence established that the substance sold was cocaine.” Id. Because this case
does not involve plain error review, motions to dismiss, or consideration of
incompetent evidence, this Court must declare whether chemical testing is
required. As I discuss in my dissent in Brewington, this declaration has already
been made by this Court in State v. Ward.
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BEASLEY, J., dissenting
In State v. Ward this Court extended the requirement of chemical testing to
verify the identity of any alleged controlled substance. 364 N.C. at 143-44, 694
S.E.2d at 744-45. While the facts in Ward specifically addressed tablets, the
language used to state the rule and the rationale behind the rule apply generally to
controlled substances governed by N.C.G.S. § 90-95. Id. Specifically, this Court
expressed concern regarding counterfeit substances, which are subject to a lesser
punishment by statute:
By 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.
364 N.C. at 143-44, 694 S.E.2d at 745.
To hold defendant accountable for his belief that the substance in question
was indeed cocaine directly nullifies the rationale presented in Ward that a
substance may be alleged to be either real or counterfeit, but in fact be the opposite.
Accordingly, defendant’s belief whether a substance is real or counterfeit is
irrelevant to the State’s burden. When the State is required to provide evidence of
chemical testing to verify the identity of a substance but fails to comply with the
Confrontation Clause, a defendant’s belief or assertion that the drug is real cannot,
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BEASLEY, J., dissenting
under the precedent of this Court, make the error harmless. The submission of
chemical testing through the proper expert’s testimony would determine the
severity of the defendant’s sentence irrespective of his belief regarding the chemical
identity of the substance.
This finding that an error would not be harmless, of course, begs the question
of whether defendant’s Sixth Amendment right to confrontation was violated.
Consistent with my dissenting opinion in Brewington, I submit that it was. Just as
in Brewington, here the State presented a surrogate expert to testify conclusively
about which tests were actually performed, how they were actually performed, and
the results they actually yielded, despite having never examined the substance in
question herself. Further, the opinion the surrogate expert purported to
independently convey depended upon visual observations not made by the surrogate
herself, predominantly that the substance was of a particular weight. This
testimony directly violates the rule in Bullcoming. ___ U.S. at ___, 131 S. Ct. at
2710 (“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 added)). In
contrast to Brewington, however, but precisely consistent with Bullcoming, here the
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BEASLEY, J., dissenting
report of the testing analyst was actually admitted into evidence, although under
the pretense of serving as illustrative evidence of the surrogate expert’s
independent opinion. This is a most egregious violation of Bullcoming and of the
Confrontation Clause. As discussed above, this violation could not be harmless
because without any scientifically valid evidence regarding the chemical identity of
the substance, the State is unable to show whether the substance in question was
real or counterfeit, thus making the State unable to prove that defendant was guilty
of the charged offense of felony possession of a controlled substance, as opposed to
the lesser offense of felony possession of a counterfeit substance.
Lastly, this result does not conflict with Nabors. In Nabors this Court stated:
While the State has the burden of proving every element
of the charge beyond a reasonable doubt, when a defense
witness's testimony characterizes a putative controlled
substance as a controlled substance, the defendant cannot
on appeal escape the consequences of the testimony in
arguing that his motion to dismiss should have been
allowed.
365 N.C. at 313, 718 S.E.2d at 627 (emphasis added) (citations omitted). There the
consequences of the testimony were that incompetent evidence would be used
against defendant and that the plain error standard would be applied. Here the
consequences of the testimony are that defendant believed the substance was
cocaine and that lay witness testimony was provided contending that the substance
was actually cocaine. Defendant cannot escape these consequences. But these
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BEASLEY, J., dissenting
consequences do not prove the element of possession of actual cocaine as required by
this Court’s precedent and enactments of the General Assembly. Although,
defendant cannot escape that he assisted the State’s case, neither may the State
escape that it did not present competent evidence on an essential element of the
crime. Because the burden falls on the State here, and not on the defendant—as it
did in Nabors—this difference is sufficient to alter the outcome.
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