State v. Bunn

619 S.E.2d 918, 173 N.C. App. 729, 2005 N.C. App. LEXIS 2301
CourtCourt of Appeals of North Carolina
DecidedOctober 18, 2005
DocketCOA04-1683
StatusPublished
Cited by2 cases

This text of 619 S.E.2d 918 (State v. Bunn) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bunn, 619 S.E.2d 918, 173 N.C. App. 729, 2005 N.C. App. LEXIS 2301 (N.C. Ct. App. 2005).

Opinion

WYNN, Judge.

. “The 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.” State v. Huffstetler, 312 N.C. 92, 108, 322 S.E.2d 110, 120 (1984) (citations omitted). In this case, Defendant contends that expert testimony based on analyses conducted by someone other than the testifying expert violated his right to confrontation under the rationale of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). Because Defendant had an opportunity to cross-examine the expert, and because the analyses on which the expert testimony was based were not hearsay, we affirm the trial court’s admission of the expert testimony. We also uphold the trial court’s denial of Defendant’s motion to dismiss his conviction of possession of cocaine with intent to sell.

*731 The State presented evidence tending to show that on 13 November 1999, two undercover Rocky Mount Police Officers approached Defendant Wayne Antonio Bunn and asked if they could “get hooked up” with drugs. Defendant advised the undercover officers that he could get them marijuana or cocaine if they gave him some of the money for the drugs first. The officers gave Defendant thirty or forty dollars, and Defendant returned with two bags of marijuana and one bag of cocaine. Video surveillance equipment in the officers’ vehicle recorded the drug transaction with Defendant.

After the drug transaction, the undercover officers secured the drugs in the “bags they came in,” and gave them to Officer Greg Brown who testified that lie put the drugs into evidence bags and placed them in a secure evidence bin inside the police department. Testing by the State Bureau of Investigation showed the drugs to be cocaine.

At trial, the State presented as an exhibit a green baggie containing cocaine — State’s Exhibit Number Two. When asked about the “green thing” in State’s Exhibit Number Two, one of the undercover officers testified that “[the green thing is] the baggie that it [the cocaine] was sold in.” However, in his earlier testimony, the undercover officer said that he received cocaine from Defendant in a “clear pink type baggie.” Moreover, the undercover officer’s supplemental police report states that the officers received cocaine from Defendant in a “small pink plastic bag.” Defendant did not present any evidence.

Defendant was found guilty of possession with intent to sell and deliver marijuana, sale and delivery of marijuana, and possession with intent to sell and deliver cocaine. The jury deadlocked on the charge of selling cocaine. The trial court consolidated the marijuana convictions and sentenced Defendant to two consecutive sentences of eight to ten months imprisonment. Defendant appealed.

On appeal, Defendant argues that the trial court committed plain error by allowing the prosecution to introduce evidence of the chemical analyses performed by a non-testifying chemist because the admission of that evidence violated his confrontation rights under the rationale of Crawford, 541 U.S. 36, 158 L. Ed. 2d 177. We disagree.

In Crawford, the United States Supreme Court held that a recorded out-of-court statement made by the defendant’s wife to the police regarding the defendant’s alleged stabbing of another, which was introduced as hearsay at trial, was testimonial in nature and thus *732 inadmissible due to Confrontation Clause requirements. Id. Regarding nontestimonial evidence, the Supreme Court stated: “Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law ... as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. at 68, 158 L. Ed. 2d at 203. Crawford made explicit that its holding was not applicable to evidence admitted for reasons other than proving the truth of the matter asserted. Id. at 60 n.9, 158 L. Ed. 2d at 198 n.9 (stating that the Confrontation “Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”) (citation omitted).

Under North Carolina case law, “testimony as to information relied upon by an expert when offered to show the basis for the expert’s opinion is not hearsay, since it is not offered as substantive evidence.” Huffstetler, 312 N.C. at 107, 322 S.E.2d at 120 (citation omitted). Indeed, our Supreme Court has stated that “[i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence^” and 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.” State v. Fair, 354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).

Regarding expert testimony and the Confrontation Clause, our Supreme Court has held 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.” Huffstetler, 312 N.C. at 108, 322 S.E.2d at 120 (citation omitted).

In the case sub judice, after a recitation of his credentials, Special Agent Robert Evans was tendered and accepted, without objection by Defendant, as an expert in forensic drug examination. Special Agent Evans, after a thorough review of the methodology undertaken by his colleague, relied on his colleague’s analyses in forming his opinion that the substance sold to the undercover officers was cocaine, and his opinion was based on data reasonably relied upon by others in the field. See Fair, 354 N.C. at 162, 557 S.E.2d at 522. We reject Defendant’s argument that Special Agent Evans merely read the laboratory report into evidence. It is clear that Special Agent Evans’s testimony was expert testimony as to the nature of the seized *733 substance as cocaine. We hold that the lab analysis was not tendered to prove the truth of the matter asserted therein, but to demonstrate the basis of Agent Evans’s opinion.

Since it is well established that an expert may base an opinion on tests performed by others in the field and Defendant was given an opportunity to cross-examine Special Agent Evans on the basis of his opinion, we- conclude that Crawford does not apply to the circumstances presented in this case. See Huffstetler, 312 N.C.

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Cite This Page — Counsel Stack

Bluebook (online)
619 S.E.2d 918, 173 N.C. App. 729, 2005 N.C. App. LEXIS 2301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bunn-ncctapp-2005.