State v. Clark

• Court: Court of Appeals of North Carolina
• Decided: December 3, 2024
• Docket: 23-1133
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1133

Filed 3 December 2024

Avery County, No. 20 CRS 50340

STATE of NORTH CAROLINA, Plaintiff,

v.

MELVIN HOWARD CLARK, Defendant.

Appeal by defendant from judgment entered 16 February 2023 by Judge R.

Gregory Horne in the Superior Court of Avery County. Heard in the Court of Appeals

11 September 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General William L. Flowers, III, for the State.

Anne Bleyman for defendant-appellant.

DILLON, Chief Judge.

Defendant Melvin Howard Clark appeals from judgment entered upon the

jury’s verdict of guilty of possession with intent to sell and deliver methamphetamine.

We vacate the judgment and remand to the trial court.

I. Background

On 26 August 2020, Defendant was subject to warrantless searches as a

condition of his probation. Officers had received tips about Defendant dealing drugs STATE V. CLARK

Opinion of the Court

from his residence. Upon searching his residence and person, officers seized

containers of a crystalline substance, among other items.

A forensic analyst, Ms. Fox, tested the crystalline substance and created a

laboratory report for the State for the evidentiary purpose of identifying the

substance. However, when the time came for Defendant’s trial, Ms. Fox was

unavailable to testify. Therefore, the State called another analyst, Mr. Cruz-

Quiñones, as its only expert witness. He offered his expert opinion that the

crystalline substance tested by Ms. Fox was, in fact, methamphetamine. He based

his opinion upon statements made by Ms. Fox contained in her lab report, as he never

performed any testing on the substance himself.

Defendant was convicted of possession with intent to sell and deliver

methamphetamine. Defendant timely appealed.

II. Analysis

On appeal, Defendant argues the opinion testimony of Mr. Cruz-Quiñones

violated Defendant’s rights under the Confrontation Clause of the Sixth Amendment

essentially because the basis of Mr. Cruz-Quiñones’s opinion was statements made

by another analyst, whom Defendant had no opportunity to confront. We review de

novo alleged constitutional violations objected to at the trial court. See Smith v. City

of Fayetteville, 227 N.C. App. 563, 565 (2013). See also State v. Abbitt, 385 N.C. 28,

40 (2023) (“[A]ny alleged violation of a defendant’s constitutional rights are reviewed

de novo.”).

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The Confrontation Clause provides that in all criminal prosecutions the

accused shall enjoy the right to be confronted with the witnesses against him. U.S.

Const. Amend. VI. See Crawford v. Washington, 541 U.S. 36, 38 (2004). “The Clause

bars the admission at trial of testimonial hearsay statements of an absent witness

unless she is unavailable to testify, and the defendant has had a prior opportunity to

cross-examine her.” Smith v. Arizona, 602 U.S. 779, 783 (2024) (internal citation and

quotation marks omitted). See also Crawford, 541 U.S. at 68 (“Where testimonial

evidence is at issue . . . the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-examination.”).

In 2009, the Supreme Court of the United States made it clear that the

Confrontation Clause applies to forensic reports, meaning a prosecutor “cannot

introduce an absent laboratory analyst’s testimonial out-of-court statements to prove

the results of forensic testing.” Smith, 602 U.S. at 783 (citing Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 307 (2009)) (emphasis added). In other words, based on

the Confrontation Clause, a prosecutor may not offer a lab report as the sole evidence

to prove that a substance is an illegal drug. Our Supreme Court has emphasized,

though, that unsworn reports may sometimes be admissible where they are more in

the nature of “business records” and not “testimonial evidence” reports. State v. Forte,

360 N.C. 427, 435 (2006).

The issue in the present case is slightly different than that in Melendez-Diaz

and Forte. Here, the evidence introduced by the State was not Ms. Fox’s lab report

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itself. Rather, the evidence offered by the State was the expert opinion of Mr. Cruz-

Quiñones, who relied upon Ms. Fox’s report as the basis of his expert opinion.

Rule 703 of our Rules of Evidence provides that an expert’s opinion is not

rendered inadmissible merely because he relies upon facts or data, which themselves

are not admissible into evidence, as long as said facts or data are “of a type reasonably

relied upon by experts in the particular field in forming opinions[.]” N.C.G.S. § 8C-1,

Rule 703 (2024).

Interpreting Rule 703, in 2013, our Supreme Court held that the opinion of an

expert concerning the identity of a particular substance may be admissible even

though the testifying expert did not test the substance but rather relied upon testing

performed by another analyst. State v. Ortiz-Zape, 367 N.C. 1, 9 (2013) (reasoning

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.”).

However, just a few months ago, in Smith v. Arizona, the Supreme Court of

the United States held that the opinion testimony of a surrogate expert who relies

upon the “testimonial hearsay” statements contained in a lab report or notes prepared

by another analyst who tested the substance in question implicates a defendant’s

right under the Confrontation Clause. 602 U.S. at 802–03.

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The issue before the Court in Smith involved the identification at trial of drugs

seized from a defendant where a forensic analyst performed laboratory tests on seized

items and prepared a signed report along with her notes documenting her lab work.

See id. at 790. Her report disclosed, for each item: (1) a description; (2) its weight

and the method of weight measurement used; (3) the tests she performed on the item;

(4) the results of the tests; and (5) her conclusion on the item’s identity. See id.

At trial, however, the lab analyst did not testify. Rather, a substitute analyst,

who prepared by reviewing the lab analyst’s notes and report, testified. See id. After

“telling the jury what [the lab analyst’s] records conveyed about her testing of the

items, [the substitute analyst] offered an ‘independent opinion’ of their identity” and

came to the same conclusion as the lab analyst. Id. at 791.

The defendant challenged the admissibility of the substitute analyst’s opinion

as a violation of his rights under the Confrontation Clause.

In its analysis, the Supreme Court reminded that “[t]o implicate the

Confrontation Clause, a statement must” meet two criteria; namely, the statement

must “[1] be hearsay (‘for the truth’) and [2] it must be testimonial . . . .” Id. at 800

(emphasis added). And if a lab analyst’s statement meets both criteria, then the

“State may not introduce” the statement unless the lab analyst “is unavailable and

the defendant has had a prior chance to cross-examine her.” Id. at 802–03.

Regarding the first prong—whether the lab analyst’s statements were

hearsay—the state of Arizona argued that said statements contained in the lab report

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were not being offered for their truth—and therefore are not hearsay—but rather

were being offered merely to “show the basis” of the in-court expert’s independent

opinion. See id. at 793. The Supreme Court, however, flatly rejected that and held

that the statements contained in the lab report are hearsay:

But truth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise? The whole point of the prosecutor’s eliciting such a statement is to establish— because of the statement’s truth—a basis for the jury to credit the testifying expert’s opinion. . . .

Or to see the point another way, consider it from the factfinder’s perspective. In the view of the Arizona courts, an expert’s conveyance of another analyst’s report enables the factfinder to determine whether the [testifying] expert’s opinion should be found credible. That is no doubt right. The jury cannot decide whether the expert’s opinion is credible without evaluating the truth of the factual assertions on which it is based. If believed true, that basis evidence will lead the jury to credit the opinion; if believed false, it will do the opposite. But that very fact is what raises the Confrontation Clause problem. For the defendant has no opportunity to challenge the veracity of the out-of-court assertions that are doing much of the work.

Id. at 795–96 (internal citations and marks omitted). The Court was not swayed by

Arizona’s evidentiary rule (similar to our Rule 703) which allows an expert to render

“his own independent opinions” based upon inadmissible data, reasoning that:

[F]ederal constitutional rights are not typically defined— expanded or contracted—by reference to non-constitutional bodies of law like evidence rules. . . . ‘Where testimonial

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statements are involved,’ [we have] explained, ‘the Framers did not mean to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence.’

Id. at 794 (citing Crawford, 541 U.S. at 61).

In the present case, Mr. Cruz-Quiñones in the same way relied upon the truth

of Ms. Fox’s statements in her report, which contained information about the

substance Ms. Fox was testing, the methods she followed in testing it, and the

purported results of her testing. That is, Ms. Fox’s statements are hearsay. Without

independent testing on his part, Mr. Cruz-Quiñones’s opinion is only persuasive if

Ms. Fox’s statements were true. As the Supreme Court reasoned in Smith:

If [the lab analyst] had lied about [how she performed her work], the [substitute analyst’s] expert opinion would have counted for nothing, and the jury would have been in no position to convict. So the State’s basis evidence—more precisely, the truth of the statements on which its expert relied—propped up its whole case. But the maker of those statements was not in the courtroom, and [the defendant] could not ask her any questions.

Id. at 798.

But the fact that Ms. Fox’s statements in her lab report are “hearsay” does not

necessarily implicate the Confrontation Clause, unless the statements are also be

shown to be “testimonial.” Id. at 800.

The Supreme Court in Smith did not reach the question of whether the lab

analyst’s report and notes in its case were testimonial, stating that the issue was not

presented in that appeal:

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What remains is whether the out-of-court statements . . . were testimonial. . . .

But that issue is not now fit for our resolution. The question presented in [the defendant’s] petition for certiorari did not ask whether [the lab analyst’s] out-of- court statements were testimonial.

Id.. Therefore, the Court remanded the matter for the Arizona trial court to consider

the issue. See id. at 801. The Court did, though, provide guidance for the trial court

in making that determination: to first determine which statements of the lab analyst

were being relied upon by the testifying analyst, and to then determine the “primary

purpose” for which those statements were made, “and in particular on how it relates

to a future criminal proceeding.” See id. at 800. In other words, the court should

consider “why [the lab analyst] created the report or notes.” Id. at 802.

Our State Supreme Court, however, has held that lab reports “created solely

for an evidentiary purpose, made in aid of a police investigation, [ ] rank as

testimonial.” See State v. Craven, 367 N.C. 51, 57 (2013) (internal quotations and

marks omitted) (emphasis added) (holding that lab reports of testing whether white

powder found on the defendant was cocaine were testimonial).

Based on our Supreme Court’s holding in Craven, we must conclude Ms. Fox’s

hearsay statements contained in her report and relied upon by Mr. Cruz-Quiñones,

without independent testing, are testimonial as a matter of law. The record before

us shows Ms. Fox’s report was created solely to aid in the police investigation of

Defendant as a matter of law. Nothing in the record indicates the report was created

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to aid in the provision of health care to Defendant or for any other reason, unlike

perhaps a hospital’s blood toxicology report prepared at least in part to aid in the

provision of treatment to a defendant.

Indeed, the lab report here shows on its face that Ms. Fox conducted the testing

for the “Avery County Sheriff’s Office” in connection with an investigation of

Defendant. It states above Ms. Fox’s signature that “THIS REPORT IS TO BE ONLY

IN CONNECTION WITH AN OFFICIAL CRIMINAL INVESTIGATION” and that it

“contains the opinions/interpretations of [Ms. Fox].” The report also identifies itself

as “an official file of the North Carolina State Crime Laboratory.”

We, therefore, conclude that Mr. Cruz-Quiñones’s failure to independently test

the substance and his sole reliance upon Ms. Fox’s statements contained in her

report—being hearsay and testimonial in nature—implicated Defendant’s rights

under the Confrontation Clause.

III. Conclusion

The State relied upon the opinion of Mr. Cruz-Quiñones to meet its burden of

proving that the substance found in Defendant’s possession was methamphetamine.

In forming his opinion, Mr. Cruz-Quiñones did not independently test the substance

and relied upon the lab report prepared by Ms. Fox in stating his opinion.

Based on the Supreme Court of the United States’s recent holding in Smith v.

Arizona, we conclude that Ms. Fox’s statements relied upon by Mr. Cruz-Quiñones

were hearsay. And based on our Supreme Court’s holding in Craven, we must

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conclude that Ms. Fox’s statements were “testimonial,” as Ms. Fox conducted the

testing and prepared her report solely to aid in the criminal investigation and

prosecution of Defendant. Accordingly, Defendant’s right under the Confrontation

Clause was implicated by Mr. Cruz-Quiñones’s opinion testimony.

Because nothing in the record suggests that Defendant ever had the

opportunity to cross-examine Ms. Fox about her lab report, we must conclude that

the trial court erred by allowing Mr. Cruz-Quiñones’s opinion testimony. As this

opinion testimony was the State’s proof regarding the seized substance’s identity, we

hold that this error was prejudicial to Defendant in his trial.

Accordingly, we vacate the judgment against Defendant and remand for a new

trial or other proceedings consistent with this opinion.

VACATED AND REMANDED.

Judges TYSON and WOOD concur.

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