State v. Ortiz-Zape , 367 N.C. 1 ( 2013 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 329PA11
FILED 27 JUNE 2013
STATE OF NORTH CAROLINA
v.
MARIO EDUARDO ORTIZ-ZAPE
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 714 S.E.2d 275(2011), reversing in part and vacating a judgment entered on 19 February 2010 by
Judge Jerry Cash Martin in Superior Court, Mecklenburg County. Heard in the
Supreme Court on 13 February 2013.
Roy Cooper, Attorney General, by Amy Kunstling Irene and Daniel P. O’Brien,
Assistant Attorneys General, for the State-appellant.
Staples S. Hughes, Appellate Defender, by Charlesena Elliott Walker,
Assistant Appellate Defender, for defendant-appellee.
MARTIN, Justice.
An expert in forensic science testified as to her opinion that a substance was
cocaine, based upon her independent analysis of testing performed by another
analyst in her laboratory. The Court of Appeals held that this testimony violated
defendant’s Sixth Amendment right to confront witnesses against him. We disagree
and reverse.
STATE V. ORTIZ-ZAPE
Opinion of the Court
On the night of 16 May 2007, Officer Craig Vollman of the Charlotte
Mecklenburg Police Department (CMPD) was on patrol duty in the University City
area. Around 10:30 p.m. a car driven by defendant pulled into an Exxon gas
station. Officer Vollman observed that the car’s thirty-day temporary tag was
“ratty and old” and the “dates looked to be tampered with.” When defendant parked
in front of the gas station store, Officer Vollman pulled his patrol car behind
defendant’s vehicle and approached him to speak about the thirty-day tag. While
defendant looked through the glove compartment for the car’s registration
paperwork, Officer Vollman shined his flashlight around the car to check for
weapons. Upon shining the light in the storage compartment of the open driver’s
door, he saw what he believed to be cocaine packaged in a plastic bag.
Officer Vollman asked defendant what was in the bag. According to Officer
Vollman’s testimony, defendant stated, “It’s mine,” and responded affirmatively
that it was cocaine but that “it was for personal use.” Officer Vollman placed
defendant under arrest. He then found “eight separate plastic sandwich baggies” in
the same door compartment as the cocaine. He also searched defendant and found
$304 in cash in his pocket. After defendant had been transported to the
Mecklenburg County jail, another officer weighed the confiscated substance and
recorded the result as 4.5 grams. The substance was subsequently sent to the
department’s crime lab for analysis. Defendant was indicted for possession with
intent to sell or deliver cocaine.
-2-
STATE V. ORTIZ-ZAPE
Opinion of the Court
At trial the State sought to introduce Tracey Ray of the CMPD crime lab as
an expert in forensic chemistry. During voir dire proceedings on the matter,
defendant sought to exclude admission of a lab report created by a non-testifying
analyst and any testimony by any lab analyst who did not perform the tests or write
the lab report. Defendant based this motion primarily on Sixth Amendment
grounds, arguing that admission of this evidence would violate his right to confront
witnesses against him. The trial court ruled that Ray could testify about the
practices and procedures of the CMPD crime lab, her review of the testing in this
case, and her independent opinion concerning the testing. But the trial court
excluded admission of the non-testifying analyst’s lab report under Rule of Evidence
403.
Before the jury, the State introduced Ray as an expert in forensic chemistry.
Ray testified she had been a forensic chemist for approximately eleven years and
had analyzed substances more than one thousand times for trial purposes. Ray
explained the standard procedures for receipt and storage of substances sent to the
CMPD crime lab. She testified that, based on the initials and control number on
the plastic bag containing the white substance—which had been admitted into
evidence as Item Number 9—the substance had been sent to the CMPD crime lab.
She stated the initials “JPM” on the item indicated to her that a chemist named
Jennifer Mills, who formerly had worked at the crime lab, “was in receipt of this
evidence and that she sealed this particular piece of evidence.”
-3-
STATE V. ORTIZ-ZAPE
Opinion of the Court
Ray then explained, based on her knowledge of the lab’s standard procedures,
what would happen to an item such as Item Number 9 when it arrived for testing:
First, the analyst would ensure that the control numbers on the property report and
the actual property matched. Then, the analyst would weigh the substance and
perform what is called a “presumptive test” to give an indication of what the
substance might be. For substances suspected to be cocaine, the presumptive test is
a cobalt thiocyanate test. If the substance turns blue, this indicates that cocaine
may be present. Next, the analyst would perform a “confirmatory test” to determine
the identity of the substance, using a gas chromatograph mass spectrometer
(GCMS) or an infrared spectrometer (FTIR). The instruments that perform these
tests record the results and data within the machine, allowing for review later in
time. According to Ray’s testimony, it is not possible to alter this reviewable data.
After completing the testing, the laboratory analyst prepares a report and puts it in
the item’s case file, along with all notes and data created during the testing. As
part of the lab’s standard operating procedure, an administrative and a technical
review are performed on nearly every case file by another analyst in the lab. As
part of this review, the second analyst examines all the data in the case file to
ensure he or she would have come to the same conclusion as to the identity of the
substance.
Ray also explained that the lab has standard procedures for ensuring that
the testing instruments are in working order. CMPD lab procedure dictates that all
-4-
STATE V. ORTIZ-ZAPE
Opinion of the Court
instruments be tested weekly and monthly, with the results recorded in each
instrument’s maintenance log. Ray testified that she had reviewed the
maintenance logs and determined that all the instruments appeared to have been in
working order when Item Number 9 was tested.
Ray testified that she conducted a “peer review” on the chemical analysis of
Item Number 9 for defendant’s trial. She reviewed all the lab notes and data from
the testing instrument. She stated that the color test and the GCMS test performed
on the substance are tests that “experts in the field of forensic chemistry would rely
upon . . . in performing [sic] the opinion as to the identity of a chemical substance.”
The prosecutor asked Ray whether, based on her training and experience and her
review of the case file here, she had formed an independent expert opinion about
the substance at issue in this case. Defense counsel objected and was overruled.
Ray testified, “My conclusion was that the substance was cocaine.”
On cross-examination defense counsel further clarified that “any opinions
[Ray] g[a]ve in court about the nature of this substance [were] based entirely on
testing done by someone else” and that Ray was not present when the tests were
performed. Defense counsel also further clarified that Ray’s testimony assumed the
testing analyst, Mills, had followed standard lab procedures in her testing of Item
Number 9.
The jury convicted defendant of possession of cocaine. The Court of Appeals
reversed the trial court, relying on State v. Williams, 208 N.C. App. 422, 702 S.E.2d
-5-
STATE V. ORTIZ-ZAPE
Opinion of the Court
233 (2010). State v. Ortiz-Zape, ___ N.C. App. ___, 714 S.E.2d 275, 2011 WL
2848792 (2011) (unpublished). The court observed Ray “did not conduct any tests
on the substance, nor was she present when [the testing chemist] did,” and
concluded that Ray “could not have provided her own admissible analysis of the
relevant underlying substance.” Ortiz-Zape, 2011 WL 2848792 at *2 (alteration in
original) (citations and quotation marks omitted). The court held “it was error for
Ms. Ray to testify as to [the testing chemist’s] findings.” Id. (citation omitted). We
allowed the State’s petition for discretionary review.
“Conclusions of law are reviewed de novo and are subject to full review.”
State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citations omitted).
Defendant argues that, because Ray did not test the substance at issue herself or
personally observe any testing, she could form no independent opinion regarding
the identity of the substance, and thus admission of her opinion identifying the
substance as cocaine violated defendant’s rights under the Confrontation Clause.
The State argues that there was no Confrontation Clause violation because the
expert testified to her own opinion about the identity of the substance. We find no
error in the trial court’s decision to allow the expert to state her opinion, and we
reverse the decision of the Court of Appeals.
To resolve the issue raised in this case, we must examine the North Carolina
Rules of Evidence in light of recent Confrontation Clause jurisprudence. The North
Carolina Rules of Evidence allow for expert testimony “in the form of an opinion, or
-6-
STATE V. ORTIZ-ZAPE
Opinion of the Court
otherwise,” if the expert’s “scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue,”
provided: “(1) The testimony is based upon sufficient facts or data[;] (2) The
testimony is the product of reliable principles and methods [and] (3) The witness
has applied the principles and methods reliably to the facts of the case.” N.C. R.
Evid. 702(a). The expert may base the opinion on facts or data “made known to him
at or before the hearing.” Id. R. 703. “If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.” Id.While the North Carolina Rules of Evidence permit an expert to present an
opinion based on substantively inadmissible information, this evidentiary rule must
comport with constitutional requirements. The Sixth Amendment to the United
States Constitution provides that “[i]n all criminal prosecutions the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. The jurisprudence interpreting this clause has undergone significant
changes in recent years.
In 2004 the Supreme Court of the United States concluded that testimonial
statements of a witness who is absent from trial may be admitted only if the
declarant is unavailable and the defendant had a prior opportunity to cross-
examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354,
1369 (2004). Crawford overturned the former rule from Ohio v. Roberts, which
-7-
STATE V. ORTIZ-ZAPE
Opinion of the Court
“condition[ed] the admissibility of all hearsay evidence on whether it falls under a
‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of
trustworthiness.’ ” Id. at 60, 124 S. Ct. at 1369 (quoting Roberts, 448 U.S. 56, 66,
100 S. Ct. 2531, 2539 (1980)). While application of the Crawford rule depends on
which statements qualify as testimonial hearsay, the Court declined to “spell out a
comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S. Ct. at 1374. The Court
noted, however, “Whatever else the term covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.” Id. The Court further noted, “The Clause also does not bar
the use of testimonial statements for purposes other than establishing the truth of
the matter asserted.” 541 U.S. at 60 n.9, 124 S. Ct. at 1369 n.9.
Since 2004 the Court has considered the application of Crawford in several
cases involving forensic reports. In Melendez-Diaz v. Massachusetts, 557 U.S. 305,
129 S. Ct. 2527 (2009), the trial court admitted into evidence three “ ‘certificates of
analysis’ ” “showing the results of the forensic analysis”—that the substance in the
seized bags was cocaine of a certain weight. Id. at 308, 129 S. Ct. at 2530-31. These
certificates were sworn to before a notary public and admitted pursuant to state law
as “ ‘prima facie evidence of the composition, quality, and the net weight of the
narcotic.’ ” Id. at 308-09, 129 S. Ct. at 2531 (quoting Mass. Gen. Laws ch. 111,
§ 13). The defendant was not given the opportunity to cross-examine the analysts
who performed the tests and certified the results. Id. at 309, 129 S. Ct. at 2531.
-8-
STATE V. ORTIZ-ZAPE
Opinion of the Court
Citing Crawford, the Court concluded that “the analysts’ affidavits were testimonial
statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.
Absent a showing that the analysts were unavailable to testify at trial and that [the
defendant] had a prior opportunity to cross-examine them, [the defendant] was
entitled to ‘be confronted with’ the analysts at trial.” Id. at 311, 129 S. Ct. at 2532(quoting Crawford, 541 U.S. at 54, 124 S. Ct. at 1365).
In 2011 the Court considered “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.” Bullcoming v. New Mexico, ___ U.S.
___, ___, 131 S. Ct. 2705, 2710 (2011). At trial the State called an analyst who had
not done the testing to introduce a lab report certifying the defendant’s blood-
alcohol concentration. Id. at ___, 131 S. Ct. at 2710. The Court held that “surrogate
testimony of that order does not meet the constitutional requirement.” Id. at ___,
131 S. Ct. at 2710.
In her concurring opinion in Bullcoming, Justice Sotomayor highlighted some
of the scenarios not presented in that case: (1) The State presents an alternate
purpose for the report; (2) The in-court witness “is a supervisor, reviewer, or
someone else with a personal, albeit limited, connection to the scientific test at
issue”; (3) “[A]n expert witness was asked for his independent opinion about
-9-
STATE V. ORTIZ-ZAPE
Opinion of the Court
underlying testimonial reports that were not themselves admitted into evidence”;
and (4) The State “introduced only machine-generated results, such as a printout
from a gas chromatograph.” Id. at ___, 131 S. Ct. at 2722 (Sotomayor, J., concurring
in part).
Most recently, the Supreme Court considered Crawford’s application in
Williams v. Illinois, ___ U.S. ___, ___, 132 S. Ct. 2221, 2227 (2012). At trial an
expert testified that “a DNA profile produced by an outside laboratory, Cellmark,
matched a profile produced by the state police lab using a sample of [the
defendant’s] blood.” Id. at ___, 132 S. Ct. at 2227 (Alito, J., Roberts, C.J., Kennedy,
& Breyer, JJ., plurality). The expert did not perform or witness the testing that
produced the DNA profile. Id. at ___, 132 S. Ct. at 2245 (Breyer, J., concurring).
The Court’s “fractured decision,” id. at ___, 132 S. Ct. at 2265 (Kagan, Scalia,
Ginsburg, & Sotomayor, JJ., dissenting), produced a plurality opinion of four
Justices, a dissenting opinion of four Justices, and two concurring opinions (with
one Justice concurring in the plurality’s judgment only). See Marks v. United
States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (“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 . . . .” (citation
and internal quotation marks omitted)).
-10-
STATE V. ORTIZ-ZAPE
Opinion of the Court
The four-Justice plurality concluded that (1) as the basis of the expert’s
opinion, the statement was not admitted for the truth of the matter asserted, and
(2) the Cellmark report “plainly was not prepared for the primary purpose of
accusing a targeted individual.” Id. at ___, ___, 132 S. Ct. at 2240, 2243 (plurality).
In other words, the plurality determined that the statement was neither hearsay
nor testimonial and therefore did not violate the Confrontation Clause. Justice
Thomas concurred in the result reached by the plurality because “Cellmark’s
statements lacked the requisite formality and solemnity to be considered
testimonial for purposes of the Confrontation Clause.” Id. at ___, 132 S. Ct. at 2255(Thomas, J., concurring in the judgment) (citation and internal quotation marks
omitted). But he would have held the expert presented an out-of-court statement
for the truth of the matter. Id. at ___, 132 S. Ct. at 2256. The four-Justice dissent
agreed with Justice Thomas on that point, arguing that the expert’s statement
constituted an out-of-court statement for the truth of the matter asserted. Id. at
___, 132 S. Ct. at 2268-72 (dissenting opinion). But the dissent disagreed with the
plurality’s and Justice Thomas’s separate conclusions that the statements were not
testimonial. As testimonial hearsay, the dissent argued, the statement was subject
to the demands of the Confrontation Clause. Id. at ___, 132 S. Ct. at 2272-77.
Justice Kagan closed the dissent by predicting that the Court’s fractured decision
would cause “significant confusion” for lawyers and judges. Id. at ___, 132 S. Ct. at
2277.
-11-
STATE V. ORTIZ-ZAPE
Opinion of the Court
Despite the lack of definitive guidance on the issue before us, a close
examination of Williams v. Illinois seems to indicate that a qualified expert may
provide an independent opinion based on otherwise inadmissible out-of-court
statements in certain contexts. Both the plurality and dissent agree that an
expert’s opinion may ultimately be admissible, but they disagreed as to the
foundational information required. See id. at ___, ___, 132 S. Ct. at 2228, 2236(plurality) (“Under settled evidence law, an expert may express an opinion that is
based on facts that the expert assumes, but does not know, to be true.”); id. at ___,
132 S. Ct. at 2270 (dissenting opinion) (“[The witness] could have added that if the
Cellmark report resulted from scientifically sound testing of [the victim’s] vaginal
swab, then it would link Williams to the assault.”). We note the dissent’s concern in
Williams was the use of out-of-court statements by a declarant whom the criminal
defendant had no opportunity to cross-examine. Id. at ___, ___, 132 S. Ct. at 2265,
2268. But when an expert states her own opinion, without merely repeating out-of-
court statements, the expert is the person whom the defendant has the right to
cross-examine.
We believe our prior holding on this issue is consistent with this conclusion.
In 2001 we stated that when an expert gives an opinion, “[i]t is the expert opinion
itself, not its underlying factual basis, that constitutes substantive evidence.” State
v. Fair, 354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001) (citation omitted), cert.
denied, 535 U.S. 1114, 122 S. Ct. 2332 (2002). Therefore, when an expert gives an
-12-
STATE V. ORTIZ-ZAPE
Opinion of the Court
opinion, the expert is the witness whom the defendant has the right to confront. In
such cases, the Confrontation Clause is satisfied if the defendant has the
opportunity “ ‘to fully cross-examine the expert witness who testifies against him,’ ”
allowing the factfinder “ ‘to understand the basis for the expert’s opinion and to
determine whether that opinion should be found credible.’ ” Id. (citations omitted).
Accordingly, 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.1 N.C. R. Evid. 703; see Fair, 354
N.C. at 162-63, 557 S.E.2d at 522; see also United States v. Turner, 709 F.3d 1187,
1190 (7th Cir. 2013). We emphasize that the expert must present an independent
opinion obtained through his or her own analysis and not merely “surrogate
testimony” parroting otherwise inadmissible statements. See Bullcoming, ___ U.S.
at ___, 131 S. Ct. at 2710 (majority).
A related issue is whether an expert who bases an opinion on otherwise
inadmissible facts and data may, consistent with the Confrontation Clause, disclose
1 The dissenting opinion would adopt the four-part analysis set out in State v.
Brewington, 204 N.C. App. 68, 78, 693 S.E.2d 182, 189 (2010). We decline to adopt this test,
as it is not generally applicable to cases such as the one before us. For example, under the
dissent’s proposed test, the first step is to “determine whether the underlying lab report is
testimonial.” But the Confrontation Clause is concerned with testimonial hearsay. See,
e.g., Crawford, 541 U.S. at 68, 124 S. Ct. at 1374. If the challenged testimony is not
hearsay—in other words, if the witness does not repeat out-of-court statements—then it is
not necessary to determine whether a lab report is testimonial.
-13-
STATE V. ORTIZ-ZAPE
Opinion of the Court
those facts and data to the factfinder. Machine-generated raw data, typically
produced in testing of illegal drugs, present a unique subgroup of this type of
information. Justice Sotomayor has noted there is a difference between a lab report
certifying a defendant’s blood-alcohol level and “machine-generated results, such as
a printout from a gas chromatograph.” Bullcoming, ___ U.S. at ___, 131 S. Ct. at
2722 (Sotomayor, J., concurring in part). The former is the testimonial statement of
a person, see id. at ___, 131 S. Ct. at 2717 (majority), and the latter is the product of
a machine. A number of courts have concluded that machine-generated raw data
are not testimonial hearsay under the Confrontation Clause. One court wrote: “Nor
is a machine a ‘witness against’ anyone. If the readings are ‘statements’ by a
‘witness against’ the defendants, then the machine must be the declarant. Yet how
could one cross-examine [a machine]?” United States v. Moon, 512 F.3d 359, 362
(7th Cir.), cert. denied, 555 U.S. 812, 129 S. Ct. 40 (2008); see also United States v.
Washington, 498 F.3d 225, 231 (4th Cir. 2007), cert. denied, 557 U.S. 934, 129 S. Ct.
2856 (2009); David H. Kaye et al., The New Wigmore: A Treatise on Evidence
§ 4.12.5 (Richard D. Friedman ed., Supp. 2013) [hereinafter Wigmore on Evidence].
Because machine-generated raw data, “if truly machine-generated,” are not
statements by a person, they are “neither hearsay nor testimonial.” Wigmore on
Evidence § 4.12.5, at 44; see also Williams, ___ U.S. at ___, 132 S. Ct. at 2259(Thomas, J., concurring in the judgment) (“[T]he Confrontation Clause regulates
only the use of statements bearing indicia of solemnity.” (citation and internal
-14-
STATE V. ORTIZ-ZAPE
Opinion of the Court
quotation marks omitted)). 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.” Bullcoming, ___ U.S. at ___, 131 S. Ct. at
2714. Accordingly, consistent with the Confrontation Clause, if “of a type
reasonably relied upon by experts in the particular field,” N.C. R. Evid. 703, raw
data generated by a machine may be admitted for the purpose of showing the basis
of an expert’s opinion.
We turn now to the instant case. Before reaching the dispositive legal issue,
we must address matters of procedure. Defendant alleges that several portions of
Ray’s testimony were erroneously admitted, yet defendant objected only once during
the course of Ray’s testimony. “In order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request, objection, or motion,
stating the specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” N.C. R. App. P. 10(a)(1).
While unpreserved evidentiary error in criminal cases may be reviewed for plain
error, “the defendant must ‘specifically and distinctly’ contend that the alleged error
constitutes plain error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333
(2012) (quoting N.C. R. App. P. 10(a)(4)). Defendant did not allege plain error;
therefore, we review only the single alleged error to which he objected at trial and
thereby preserved for appellate review: Agent Ray’s statement that in her expert
-15-
STATE V. ORTIZ-ZAPE
Opinion of the Court
opinion the substance was cocaine.2 We review this alleged constitutional error de
novo.
During voir dire defense counsel moved to exclude admission of the lab
report, the lab tests, and any testimony by any lab analyst who did not personally
perform the tests or write the reports, based on Confrontation Clause grounds. The
court ruled that Ray could testify about her background, experience, education, and
training; the practices and procedures of the CMPD crime lab; and her review of the
testing done and her independent opinion. The court also ruled that the State could
not admit the non-testifying analyst’s report into evidence because of considerations
under Rule of Evidence 403. Thus, unlike in Melendez-Diaz and Bullcoming, the
reports produced by the non-testifying analyst were not admitted into evidence.
Before the jury Ray was certified as an expert in forensic chemistry and
testified regarding the CMPD crime lab’s standard procedures and her review of the
tests associated with the substance at issue. The prosecutor then asked:
2The dissenting opinion argues Agent Ray “testified to some of [the] contents” of the
report written by the non-testifying analyst. As an example, the dissent writes: “[The
analyst] was later asked, ‘[C]an you tell us what [the original analyst’s] result appears to
have been?’ She answered, ‘[O]n the color test, it has a positive sign with a circle around it
and then says blue underneath that.’ ” The dissenting opinion fails to note, however, that
this testimony was elicited by defendant’s attorney on cross-examination—not by the State.
Further, defendant objected only when the prosecution asked Ray, “What is your
independent expert opinion?” “Generally speaking, the appellate courts of this state will
not review a trial court’s decision to admit evidence unless there has been a timely
objection. . . . [, which] must be contemporaneous with the time such testimony is offered
into evidence.” State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (internal
citations and quotation marks omitted). Therefore, we review only the testimony to which
defendant objected.
-16-
STATE V. ORTIZ-ZAPE
Opinion of the Court
Q. Based on your training and experience in the field
of forensic chemistry and your employment at the CMPD
crime lab as well as other labs prior to that and your
review of the file in this case, did you have a chance to
form your own independent expert opinion as to the
identity of the substance in control number 16826?
A. Yes, I did.
Q. What is your independent expert opinion?
[DEFENSE COUNSEL]: Objection, your Honor. I
don’t need to be heard further.
THE COURT: Yes, ma’am. Objection overruled,
you may answer.
A. My conclusion was that the substance was cocaine.
Q. Is that still your opinion currently?
A. Yes, it is.
Based on defendant’s arguments at the earlier voir dire hearing, it is clear that this
objection was based on the Confrontation Clause.
Defendant argues that this rendering of Ray’s expert opinion on a substance
she did not personally test or observe being tested violated his right to confront
witnesses against him. We disagree. As we stated above, 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. In accordance with Rule of Evidence 703,
Ray gave her expert opinion that was based upon facts or data “of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon
-17-
STATE V. ORTIZ-ZAPE
Opinion of the Court
the subject.” N.C. R. Evid. 703. The prosecutor laid the foundation for the Rule 703
testimony:
Q. And are these tests [color test, melting point, and
GCMS] standards such that other experts in the field of
forensic chemistry would rely upon them in performing
[sic] the opinion as to the identity of a chemical
substance?
A. Yes, they are.
Further, the prosecutor established that Ray’s opinion was her own, independently
reasoned opinion—not “surrogate testimony” parroting the testing analyst’s opinion.
See Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2710.
Q. And for trial today were you asked to review the
chemical analysis that was performed on Item Number 9,
control number 16826?
A. Yes, I did.
Q. And did you do that review?
A. Yes.
Q. And what complaint number is associated with
that, this case and that control number?
A. The complaint number is 20070516223000.
Q. And what control number is that?
A. 200716826.
Q. When you conducted this peer review, specifically
what documents did you review?
A. I reviewed the drug chemistry worksheet or the lab
-18-
STATE V. ORTIZ-ZAPE
Opinion of the Court
notes that the analyst wrote her notes on and the data
that came from the instrument that was in the case file
and then I also reviewed the data that was still on the
instrument and made sure that was all there too.
As part of her review, Ray analyzed the “reviewable data” generated by the GCMS
machine. Ray testified that the machine internally records the data and there is no
way to make alterations to what is recorded. As she stated on cross-examination,
the GCMS machine produces a graph based on its testing, from which Ray was able
to determine “the molecular weight of the substance and how it breaks down and
relate that back to the chemical structure.” Ray compared the machine-produced
graph to the data from the lab’s sample library and concluded that the substance
was cocaine.
This expert opinion, from Ray’s own analysis of the data, constituted the
substantive evidence being presented against defendant. See Fair, 354 N.C. at 162,
557 S.E.2d at 522. Therefore, the testifying expert was the witness whom
defendant had the right to confront. Id. Defendant was able to cross-examine Ray
fully concerning all aspects of her testimony. See id. Indeed, the cross-examination
made abundantly clear for the jury that Ray “didn’t personally observe any of these
tests being done” and that she “ha[d] to assume [the testing analyst] followed the
standard operating procedures.”3 Accordingly, the admission of Ray’s expert
3 Viewing the separate opinions in Williams v. Illinois in their totality, we suggest
that prosecutors err on the side of laying a foundation that establishes compliance with
Rule of Evidence 703, as well as the lab’s standard procedures, whether the testifying
-19-
STATE V. ORTIZ-ZAPE
Opinion of the Court
opinion did not violate defendant’s right to confront witnesses against him.
Even assuming admission of Ray’s expert opinion violated defendant’s rights
under the Confrontation Clause, the alleged error was harmless, providing a
separate, adequate, and independent state law ground for the judgment of the
Court. “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.” Lawrence, 365 N.C. at 513, 723 S.E.2d at 331. “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).
The arresting officer testified that when he found the plastic baggy
containing a white substance, he picked it up and asked defendant, “What’s this?”
The officer further testified that defendant acknowledged it was his cocaine—and
asserted it was for personal use and he was not dealing drugs. In the same
compartment as the plastic baggy containing the white substance, the officer also
found “eight separate plastic sandwich baggies, similar to the plastic baggy that
was wrapped around the [white substance] [he] found.” The officer testified that
cocaine is typically packaged for sale in sandwich baggies. Defendant’s explanation
analyst observed or participated in the initial laboratory testing, what independent
analysis the testifying analyst conducted to reach her opinion, and any assumptions upon
which the testifying analyst’s testimony relies.
-20-
STATE V. ORTIZ-ZAPE
Opinion of the Court
at trial for his possession of the substance was that he had stopped at a gas station
to buy some milk and three men “knocked on the [car] door and they handed me
[the substance and baggies] and told me give us money for this.” He stated he was
afraid he was being robbed, so he handed the men a portion of the $500 in cash from
his pockets but “never imagined that it was drugs or something like that.” Defense
counsel elicited a statement from the arresting officer that the substance “appears
to be powder cocaine.” Under these facts, in which defendant told a law
enforcement officer that the substance was cocaine and defense counsel elicited
testimony that the substance appeared to be cocaine, any possible error in allowing
the expert opinion was harmless. See State v. Nabors, 365 N.C. 306, 312-13, 718
S.E.2d 623, 627 (2011).
The Sixth Amendment guarantees that “ ‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.’ ”
Crawford, 541 U.S. at 38, 124 S. Ct. at 1357 (quoting U.S. Const. amend. VI).
CMPD forensic chemist Tracey Ray analyzed the data pertaining to the seized
substance and gave her independent expert opinion that the substance was cocaine.
Defendant had the opportunity to cross-examine the witness against him: Tracey
Ray. The admission of an independent expert opinion based on the expert’s own
scientific analysis is not the type of evil the Confrontation Clause was designed to
prevent. We find no error and reverse the Court of Appeals.
REVERSED.
-21-
STATE V. ORTIZ-ZAPE
Opinion of the Court
Justice BEASLEY took no part in the consideration or decision of this case.
Justice HUDSON dissenting.
The majority opinion here begins by declaring that the expert gave her
opinion “based upon her independent analysis of testing performed by another,”
without a clear explanation of why this matters in the context of Confrontation
Clause analysis.4 The majority goes on to cite Williams v. Illinois for the
proposition that “a qualified expert may provide an independent opinion based on
otherwise inadmissible out-of-court statements.” The Court in Williams did not
hold—nor do any other cases—that expert testimony like that here, based entirely
on testing done by an absent analyst for the sole purpose of prosecuting this
defendant, would be free of a Sixth Amendment Confrontation Clause violation if
the expert claimed her opinion was “independent,” when the record shows
manifestly that it was not. Nor did the Court in Williams hold, as the majority here
does, that “when an expert states her own opinion, without merely repeating out-of-
court statements, the expert is the person whom the defendant has the right to
cross-examine.” In my view, the Supreme Court cases mean instead that the
4 The independence, or lack thereof, of the testifying expert’s opinion is only relevant
to the Confrontation Clause analysis if it is first established that the lab report underlying
the expert’s testimony is itself testimonial (it is) and that the analyst who prepared the
report did not testify (she did not).
-22-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
testimony Agent Ray gave here that the substance was cocaine—based on testing
done by an absent analyst (Agent Mills) who was not cross-examined by
defendant—violated defendant’s right to confront Mills, as protected by the Sixth
Amendment and explained in Supreme Court decisions from Crawford to Williams.
Because I also conclude that this constitutional error is not harmless beyond a
reasonable doubt, I would grant defendant a new trial. I respectfully dissent.5
Before engaging the substantive issue here, I believe a review of recent
Confrontation Clause jurisprudence is in order, if only to highlight how far afield
the majority has gone. In Crawford v. Washington the United States Supreme
Court rejected as unsound its own earlier decision in Ohio v. Roberts, 448 U.S. 56,
65-66, 100 S. Ct. 2531, 2538-39 (1980). Instead, the Court concluded in Crawford
that a defendant’s Confrontation Clause rights are violated when out-of-court
testimonial statements are admitted without a showing that the declarant is
5 Before reaching the “dispositive issue,” the majority addresses procedure and
concludes that defendant has not adequately objected to the admission of Ray’s testimony,
which it says should be reviewed for plain error. In my opinion, this discussion, and any
effort to couch this case in terms of plain error, is entirely misplaced. The State did not
argue that review here should be for plain error; its argument heading in the brief is: “The
Court of Appeals erred by finding any error was not harmless beyond a reasonable doubt.”
The argument then addresses what it appropriately notes is the proper standard for review
of alleged constitutional error. Moreover, the State has not contended that the issue was
not adequately preserved. Indeed, the trial court, at defendant’s request, conducted voir
dire on the admissibility of the testimony and reports and ruled the reports out, but found
the testimony allowable. On direct examination, at the only point the witness was asked
for an “opinion,” defense counsel objected. After the testimony was admitted and cross-
examined, defense counsel moved to strike the expert’s testimony, and the transcript
reveals several pages of colloquy before the motion to strike was denied. As such,
defendant has preserved as well as he could the one issue that matters here, to wit, Agent
Ray’s opinion (based on another’s testing) that the substance was cocaine.
-23-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
unavailable to testify and that the defendant had a prior opportunity to cross-
examine that person. Crawford, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004).
In Roberts the Court allowed hearsay testimony if it possessed “adequate ‘indicia of
reliability,’ ” 448 U.S. at 66, 100 S. Ct. at 2539; however, in Crawford the Court
stated that the Confrontation Clause “commands, not that evidence be reliable, but
that reliability be assessed in a particular manner: by testing in the crucible of
cross-examination,” 541 U.S. at 61, 124 S. Ct. at 1370. In rejecting the reliability
standard the lower courts had applied in the case, the Supreme Court wrote in
Crawford that “[e]ach of the courts also made assumptions that cross-examination
might well have undermined.” Id. at 66, 124 S. Ct. at 1372.
The Supreme Court declined to announce a complete definition of
“testimonial” in Crawford. Id. at 68, 124 S. Ct. at 1374. Relevant here, however,
the Supreme Court subsequently addressed the meaning of “testimonial” when
discussing certified lab reports identifying a substance as cocaine in Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 307-08, 129 S. Ct. 2527, 2530-31 (2009). There the
Court concluded that “[lab] analysts’ affidavits were testimonial statements, and
the analysts were ‘witnesses’ for purposes of the Sixth Amendment.” Id. at 311, 129
S. Ct. at 2532. Again, the Court placed heavy emphasis on the power of cross-
examination to expose weaknesses in such testimony: “Like the eyewitness who has
fabricated his account to the police, the analyst who provides false results may,
under oath in open court, reconsider his false testimony.” Id. at 319, 129 S. Ct. at
-24-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
2537. “Like expert witnesses generally, an analyst’s lack of proper training or
deficiency in judgment may be disclosed in cross-examination.” Id. at 320, 129 S.
Ct. at 2537. Melendez-Diaz establishes that absent a stipulation or a statutory
notice-and-demand waiver, a lab report of this type may not be admitted “without
offering a live witness competent to testify to the truth of the statements made in
the report.” Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2709
(2011).
In Bullcoming, the Supreme Court then addressed the next logical question
flowing out of Melendez-Diaz, specifically
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.
Id. at ___, 131 S. Ct. at 2710. Although the expert in Bullcoming was competent to
testify to the lab processes, the Court held that such “surrogate testimony” did not
satisfy the requirements of the Confrontation Clause. Id. at ___, 131 S. Ct. at 2710.
The lower appellate court had held that such testimony was permissible because the
analyst had “ ‘simply transcribed the resul[t] generated by the gas chromatograph
machine’ ” and the real witness against the defendant was the actual machine. Id.at ___, 131 S. Ct. at 2714 (alteration in original). The Supreme Court rejected this
argument, reasoning that the testing analyst’s report was “more than a machine-
-25-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
generated number.” Id. at ___, 131 S. Ct. at 2714. The Court noted that the testing
analyst’s affidavit certified facts such as an unbroken chain of custody, the
particular test performed, and the analyst’s adherence to protocol in performing
that test. Id. at ___, 131 S. Ct. at 2714. “These representations, relating to past
events and human actions not revealed in raw, machine-produced data, are meet for
cross-examination.” Id. at ___, 131 S. Ct. at 2714. The State also argued that its
proposed testifying expert could properly testify because he was an expert with
respect to the gas chromatograph machine and the laboratory’s procedures. Id. at
___, 131 S. Ct. at 2715. The Court disagreed, recognizing that cross-examination of
a surrogate analyst would be ineffective to expose any weaknesses in the lab
reports, thus failing to satisfy the Confrontation Clause:
But surrogate 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.
Id. at ___, 131 S. Ct. at 2715 (footnote omitted). Ultimately, the Supreme Court
concluded that a defendant’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.” Id. at ___, 131 S.
Ct. at 2710.
Most recently, in Williams v. Illinois the Supreme Court granted certiorari to
-26-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
address whether Crawford prohibits “an expert from expressing an opinion based on
facts about a case that have been made known to the expert but about which the
expert is not competent to testify,” ___ U.S. ___, ___, 132 S. Ct. 2221, 2227 (2012)
(plurality), or, as articulated by Justice Sotomayor in her concurrence in
Bullcoming, to address the situation in which “an expert witness [is] asked for his
independent opinion about underlying testimonial reports that were not themselves
admitted into evidence,” Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2722(Sotomayor, J., concurring in part). In Williams an expert witness offered her
opinion regarding a DNA match between samples analyzed in two separate reports,
one of which was not entered into evidence. ___ U.S. at ___, 132 S. Ct. at 2229-30.
The opinion in Williams revealed a fractured court, but a majority—the four Justice
plurality and Justice Thomas—found that the underlying report was not
testimonial, meaning there was no Confrontation Clause violation. Id. at ___, 132
S. Ct. at 2242-44 (plurality); id. at ___, 132 S. Ct. at 2255 (Thomas, J., concurring in
the judgment).6 Importantly, the plurality distinguished the earlier cases from the
6 Though the majority acknowledges the split opinion in Williams, the majority still
appears to ascribe precedential value to the plurality opinion, classifying it as the
narrowest grounds among the concurring opinions. I disagree. Neither the plurality’s
reasoning nor Justice Thomas’s concurrence is narrower; they are simply different. Justice
Thomas agreed with the plurality that the report was not testimonial, but for a different
reason—insufficient formality. On the other hand, he agreed with the four dissenters that
the Cellmark report was offered for the truth of the matter asserted therein. Thus, I
believe the only firm conclusions we can draw from Williams are that the lab report there
was not testimonial and that five justices agreed it was offered for its truth. These
conclusions appear to apply only to the precise facts in Williams. Because it is clear that
the lab report here was testimonial, as well as offered for its truth, Williams gives us little
-27-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
Williams testimony, in which the expert testified that the two DNA profiles were
from the same person, not that either or both were accurate or true: “The Cellmark
report is very different. It plainly was not prepared for the primary purpose of
accusing a targeted individual.” Id. at ___, 132 S. Ct. at 2243 (plurality). “In
Hammon and every other post-Crawford case in which the Court has found a
violation of confrontation right, the statement at issue had the primary purpose of
accusing a targeted individual.” Id. at ___, 132 S. Ct. at 2243 (plurality).
In the Williams plurality opinion, Justice Alito noted that the Court’s
conclusion to allow the testimony of the DNA expert
is entirely consistent with 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.
Id. at ___, 132 S. Ct. at 2240 (plurality). But in the case before us, something quite
comparable happened—though the report itself was not admitted, its essential
contents were delivered via surrogate testimony that depended entirely upon review
of the reports and involved no independent analysis. Further, it cannot be
questioned that the primary purpose of the lab report here was to accuse a targeted
individual. As such, the result should be the same in that the testimony here
additional guidance.
-28-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
violated the Sixth Amendment Confrontation Clause, as in Bullcoming and
Melendez-Diaz.
Were there any indication in the record that Agent Ray did “independent
analysis,” I could perhaps agree with the majority. There is none. She testified on
direct examination, based entirely on her review of tests and notes by Agent Mills:
Q. And for trial today were you asked to review the
chemical analysis that was performed on Item Number 9,
control number 16826?
A. Yes, I did.
....
Q. When you conducted this peer review, specifically
what documents did you review?
A. I reviewed the drug chemistry worksheet or the lab
notes that the analyst wrote her notes on and the data
that came from the instrument that was in the case file
and then I also reviewed the data that was still on the
instrument and made sure that was all there too.
She then responded that, based upon this review, her “independent opinion” was
that the substance “was cocaine.” But, on cross-examination she testified, among
other things, to the following:
Q. All right. Now just to go back to the beginning, you
have done no testing of your own on Item Number 9;
correct?
A. No, I have not.
Q. And so any opinions you give in court about the
nature of this substance are based entirely on testing
-29-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
done by someone else?
A. Correct.
Q. And you were not present when those tests were
performed, were you?
A. No, I was not.
Q. And you didn’t even work there until
approximately two years later; correct?
A. Correct.
She acknowledged repeatedly that she could not personally verify anything about
the way the tests were done and said, “I only know of what’s on the drug
worksheet,” and “I can only say according to the worksheet.” “[T]he [Confrontation]
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.” Bullcoming, ___ U.S. at
___, 131 S. Ct. at 2716 (majority). Because the expert here (Agent Ray) simply
viewed and agreed with the test results of another (Agent Mills), while she
performed no testing and was not present for those tests, I must conclude her
testimony violates the Confrontation Clause when analyzed according to the
jurisprudence of Crawford, Melendez-Diaz, Bullcoming, and Williams. The
defendant here had the right under the Sixth Amendment Confrontation Clause to
cross-examine Mills, not just Ray.
As stated above, having implicitly acknowledged that the report was
-30-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
testimonial and knowing the testing analyst was absent, the majority asserts that
Agent Ray offered an independent opinion on the identity of the substance tested
based on the lab reports. As I understand the opinion, the only “evidence” the
majority points to in support of this holding is the questioning by the State at trial.
Agent Ray was asked, “What is your independent expert opinion?” She answered
that “the substance was cocaine.” However, careful review of the testimony, both on
direct and cross-examination, demonstrates that her opinion was in no way
independent—all her knowledge and opinions about the testing process and the
substance were based entirely on the review and analysis by Agent Mills, who had
left the lab two years before Ray’s employment even began. Ray testified that she
conducted an “administrative” and a “technical” review of Mills’s file (which the
prosecutor characterized in his questions as a “peer review” of the testing analyst’s
work), including reading the report notes and results off the machine. Agent Ray
was not asked about and did not explain any “analysis” that she performed; instead,
she explained that her administrative and technical reviews were “to make sure
there is [sic] no mistakes,” as with spelling or data input, and to verify that she
would have reached the same conclusion based on the data generated by the testing
agent. In my view, this is not an “independent” opinion as that term is used by the
Supreme Court.
The majority states that “[a]s part of her review, Ray analyzed the
‘reviewable data’ generated by the GCMS machine. Ray testified that the machine
-31-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
internally records the data, and there is no way to make alterations to what is
recorded.” (Emphasis added.) The majority fails to consider how the original
testing analyst may have handled or altered the substance before it was placed in
the machine, or how it was entered into the machine. “Forensic evidence is not
uniquely immune from the risk of manipulation.” Melendez-Diaz, 557 U.S. at 318,
129 S. Ct. at 2536.
Confrontation is one means of assuring accurate
forensic analysis. While it is true, as the dissent notes,
that an honest analyst will not alter his testimony when
forced to confront the defendant, the same cannot be said
of the fraudulent analyst. Like the eyewitness who has
fabricated his account to the police, the analyst who
provides false results may, under oath in open court,
reconsider his false testimony. And, of course, the
prospect of confrontation will deter fraudulent analysis in
the first place.
Confrontation is designed to weed out not only the
fraudulent analyst, but the incompetent one as well.
Serious deficiencies have been found in the forensic
evidence used in criminal trials. . . . Like expert
witnesses generally, an analyst’s lack of proper training
or deficiency in judgment may be disclosed in cross-
examination.
Id. at 318-19, 129 S. Ct. at 2536-37.7 I would hold that the type of “peer review”
conducted by Agent Ray in this case is constitutionally deficient because it brings in
7 In North Carolina recent events have proved that these concerns about forensic
testing are more than just mere speculation. See Chris Swecker & Michael Wolf, An
Independent Review of the SBI Forensic Laboratory 4 (2010) (“This report raises serious
issues about laboratory reporting practices from 1987-2003 and the potential that
information that was material and even favorable to the defense of criminal charges filed
was withheld or misrepresented.”); see also Paul C. Giannelli, The North Carolina Crime
Lab Scandal, 27 Crim. Just., Spring 2012, at 43, 43 (“This failure of the North Carolina
criminal justice system is breathtaking.”).
-32-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
key substantive evidence from the lab report without allowing for the type of cross-
examination required by the United States Supreme Court to avoid a violation of a
defendant’s Confrontation Clause rights.
The majority also states that “the testifying expert was the witness whom the
defendant had the right to confront. Defendant was able to cross-examine Ray fully
concerning all aspects of her testimony.” But the United States Supreme Court has
stated that “the [Confrontation] 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.” Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2716. Because she was not
present, Agent Ray could not possibly testify to the procedures followed, or not
followed, by Agent Mills, the nontestifying analyst; cross-examination of Agent Ray
is not a “fair enough opportunity for cross-examination” under the Confrontation
Clause. Id. at ___, 131 S. Ct. at 2716. Again, the defendant had the right to cross-
examine Agent Mills.
The majority correctly states that “raw, machine-generated data” are neither
hearsay nor testimonial. The majority relies heavily on the fact that Agent Ray
looked at such “raw, machine-generated data” when forming her allegedly
independent opinion. In doing so, the majority oversimplifies Agent Ray’s review
process and testimony and glosses over the portions that most clearly implicate the
Confrontation Clause. Agent Ray did not simply look at graphs produced from
-33-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
machines and testify to those results. Rather, she testified:
Q. When you conducted this peer review, specifically
what documents did you review?
A. I reviewed the drug chemistry worksheet or the lab
notes that the analyst wrote her notes on and the data
that came from the instrument that was in the case file
and then I also reviewed the data that was still on the
instrument and made sure that was all there too.
Immediately after this exchange, Agent Ray was asked to “list the tests that
were conducted on the substance in control number 16826[.]” She responded, “A
color test was performed, a melting point was performed, and then the GCMS was
used.” She was later asked, “[C]an you tell us what her result appears to have
been?” She answered, “[O]n the color test it has a positive sign with a circle around
it and then says blue underneath that.” Agent Ray did not simply evaluate raw
data—she reviewed the lab report and testified to some of its contents, specifically
which tests the nontestifying analyst conducted and the results of those tests.
Because Agent Ray was not present for those tests, she had to rely entirely on the
certification of the testing analyst that those tests were in fact performed, and
performed in compliance with operating procedure and without error. Because that
certification “reported more than a machine-generated number . . . . [t]hese
representations, relating to past events and human actions not revealed in raw,
machine-produced data, are meet for cross-examination.” Bullcoming, ___ U.S. at
___, 131 S. Ct. at 2714. Here, as in Crawford (and Bullcoming), it is clear from
-34-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
Agent Ray’s testimony that she, and now the majority, have relied on “assumptions
that cross-examination might well have undermined.” Crawford, 541 U.S. at 66,
124 S. Ct. at 1372.8 Had Agent Ray simply been provided the graphs and data
printouts themselves, and come to conclusions based on that raw data, there might
not have been a confrontation problem. See Williams, ___ U.S. at ___, 132 S. Ct. at
2240; but see Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2715 (“[T]he comparative
reliability of an analyst’s testimonial report drawn from machine-produced data
8 Ray testified, for example:
Q. You have to assume she followed the standard operating
procedures, correct?
A. Correct.
Q. Can you personally verify anything about the conditions
of her lab suite at the time?
A. No, I cannot.
Q. Can you verify anything about her state of mind at the
time?
A. No, I cannot.
Q. Can you verify that she wore gloves when she performed
these tests?
A. No, I cannot.
Q. Can you verify how many different samples she tested
that day?
A. No.
Q. Have you run a GCMS on this substance?
A. No, I did not.
-35-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
does not overcome the Sixth Amendment bar.”). But as soon as she testified to past
events memorialized in the testing analyst’s lab notes and drug worksheet, Agent
Ray implicated the Confrontation Clause.
Further, even if she had only relied on raw data in forming her opinion,
Agent Ray’s expert opinion would be relevant only if the State provided the
foundation for the data, such as how the data were generated—a foundation that
would presumably require testimony from the nontestifying analyst anyway. See
Williams, ___ U.S. at ___, 132 S. Ct. at 2241 (identifying as a safeguard against
circumvention of the Confrontation Clause the rule that “if the prosecution cannot
muster any independent admissible evidence to prove the foundational facts that
are essential to the relevance of the expert’s testimony, then the expert’s testimony
cannot be given any weight by the trier of fact” (emphasis added)). In Williams, this
safeguard was satisfied by “independent circumstantial evidence showing that the
Cellmark report was based on a forensic sample taken from the scene of the crime.”
Id. at ___, 132 S. Ct. at 2240-41. Here, without entering the report itself into
evidence or allowing Agent Ray to testify from the report about chain-of-custody
information, there is no independent evidence establishing that the data Agent Ray
reviewed were generated in fact from the sample taken from the crime scene.
Agent Ray’s testimony is also legally insufficient to prove that the substance
was cocaine because her opinion was based on assumptions that the substance was
properly logged and handled, the tests properly conducted, and the results properly
-36-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
recorded. Effectively, her opinion is “if everything was done properly, and if the
report is accurate, then the substance is cocaine.” Without other evidence to
confirm those assumptions, there is no actual proof that defendant possessed
cocaine.
While the majority acknowledges that the North Carolina Rules of Evidence
“must comport with constitutional requirements,” the substance of its opinion does
not follow that mandate. Instead, the majority opinion relies heavily on the Rules
of Evidence, which are irrelevant to the determination of whether defendant’s
Confrontation Clause rights have been violated.9 As stated by the United States
Supreme Court: “Leaving the regulation of out-of-court statements to the law of
9 At the heart of the majority opinion here is the assertion that as long as a
testifying expert is cross-examined, the Confrontation Clause is satisfied. The majority
appears to rely on State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001), cert. denied, 535 U.S.
1114, 122 S. Ct. 2332 (2002), and State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984),
cert. denied, 471 U.S. 1009, 105 S. Ct. 1877 (1985), for this assertion. These cases were
based entirely on the now-discredited reliability framework established by the United
States Supreme Court in Ohio v. Roberts, 448 U.S. at 65-66, 100 S. Ct. at 2538-39. As
pointed out by the majority, Roberts was explicitly overturned by the United States
Supreme Court in Crawford: “The [Roberts] framework is so unpredictable that it fails to
provide meaningful protection from even core confrontation violations.” 541 U.S. at 63, 124
S. Ct. at 1371. See also Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1181
(2007) (“The Crawford rule is flatly inconsistent with the prior governing precedent,
Roberts, which Crawford overruled.”). Relying on Fair and Huffstetler, the majority
concludes that because “ ‘[i]t is the expert opinion itself, not its underlying factual basis,
that constitutes substantive evidence,’ ” Fair, 354 N.C. at 162, 557 S.E.2d at 522, and that
so long as the information relied upon by the testifying expert “[allows] the factfinder ‘to
understand the basis for the expert’s opinion and to determine whether that opinion should
be found credible,’ ” Huffstetler, 312 N.C. at 108, 322 S.E.2d at 121, there is no
Confrontation Clause violation. To the extent that Huffstetler and Fair rely on the rejected
Roberts framework, they cannot be considered good law and have no place in our discussion
of this issue.
-37-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
evidence would render the Confrontation Clause powerless to prevent even the most
flagrant inquisitorial practices.” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364.
“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 . . .
.” Id. at 61, 124 S. Ct. at 1370. Defendant did not challenge the testimony here for
violations of the Rules of Evidence but because it violated his Sixth Amendment
right to confront witnesses against him. The North Carolina Rules of Evidence
have no place in this discussion.
Finally, the majority has failed to set out a clear framework for lower courts
to use in analyzing this type of complicated, fact-specific Confrontation Clause
question. Part of our charge as a Court is to provide guidance to lower courts; thus,
I have set out a methodical approach for cases in which an expert witness testifies
about the results of a lab report, regardless of whether the underlying report is
ultimately admitted into evidence. Viewing recent United States Supreme Court
precedent as a whole, I apply a four-part analysis to address these types of cases.
First, we determine whether the underlying lab report is testimonial—if it is
not, there is no Confrontation Clause violation. Compare Bullcoming, ___ U.S. at
___, 131 S. Ct. at 2217 (rejecting the prosecution’s argument that the lab reports
were not testimonial because, according to the Court, “[a] document created solely
for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks as
testimonial”), with Williams, ___ U.S. at ___, 132 S. Ct. at 2243 (deciding that the
-38-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
lab report in question was not testimonial because “the primary purpose of the
Cellmark report, viewed objectively, was not to accuse [the defendant] or to create
evidence for use at trial”) (plurality).
Second, we examine whether the testifying expert personally conducted the
testing, and if not, whether the State has shown that the nontestifying analyst is
unavailable and that the defendant had a prior opportunity to cross-examine. If the
original testing analyst testifies, there would be no Confrontation Clause violation
because she could be cross-examined on the procedures and protocols she followed
in conducting the tests. See Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2715. But if
the original testing analyst does not appear as a witness, the State must show that
she was unavailable and that defendant had a prior opportunity to cross-examine
her. See Melendez-Diaz, 557 U.S. at 309, 129 S. Ct. at 2531. In the absence of such
a showing, or a stipulation or waiver, neither the report itself nor the report’s
conclusions can be properly received as evidence without running afoul of the
Confrontation Clause. See id. at 329, 129 S. Ct. at 2542; see also Bullcoming, ___
U.S. at ___, 131 S. Ct. at 2715.
Third, if the testifying analyst is relying on another analyst’s reports, we
decide whether the testifying expert offered an independent opinion based on the
lab report or merely acted as a surrogate witness. The decision in Bullcoming
appears to leave 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
-39-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
2716 (noting that the State did not “assert that [the substitute expert] had any
‘independent opinion’ concerning Bullcoming’s [blood alcohol content]”). But the
opinion must be truly independent—“surrogate testimony” that brings in the absent
analyst’s test results and conclusions but cannot “convey what [the testing analyst]
knew or observed about the events his certification concerned” is constitutionally
insufficient. Id. at ___, 131 S. Ct. at 2715.
Fourth, we decide whether any error is reversible, applying the appropriate
standard of review.
In applying that structure for analysis here, I would hold that: (1) the lab
report underlying Agent Ray’s statements was testimonial; (2) Agent Ray did not
personally conduct the testing on the cocaine sample, and the State has not shown
that the testing analyst (Mills) was unavailable and that defendant had a prior
opportunity to cross-examine; (3) Agent Ray offered no independent opinion based
on the lab report, merely communicating to the jury the lab report’s contents under
the guise of an expert opinion; and (4) the error was not harmless beyond a
reasonable doubt.
In addressing the fourth component, the majority assumes for the sake of
argument that admission of the testimony violated the Confrontation Clause, but
finds the error harmless. As the majority acknowledges, the State bears the burden
of proving that this constitutional error was harmless beyond a reasonable doubt.
See N.C.G.S. § 15A-1443(b) (2011). Under subsection 15A-1443(b), this Court
-40-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
presumes such a violation to be prejudicial. Id. Our case law shows that in order to
overcome this presumption, we often require “overwhelming” evidence of a
defendant’s guilt. See, e.g., State v. Bunch, 363 N.C. 841, 845-46, 689 S.E.2d 866,
869 (2010) (“ ‘[T]he presence of overwhelming evidence of guilt may render error of
constitutional dimension harmless beyond a reasonable doubt.’ ” (alteration in
original) (quoting State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988))).
Here, because I would hold that Agent Ray’s testimony was inadmissible, the only
remaining evidence the State presented to prove that the substance was cocaine
was (1) the officer’s testimony that defendant admitted the fact to him at the scene
of the crime, and (2) the officer’s testimony that the substance “appear[ed] to be
powder cocaine.” This is hardly overwhelming evidence because it turns entirely on
the officer’s credibility.
Further, in its harmless error analysis the majority misapplies State v.
Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011). There, we applied the plain error
standard of review, not constitutional harmless error review as we do here. There,
unlike here, the defendant put on affirmative evidence that the substance in
question was cocaine but that it belonged to someone else; in addition, he
challenged the sufficiency of the evidence through a motion to dismiss, rather than
by objecting to the testimony identifying the controlled substance. Id. at 312-13,
718 S.E.2d at 626-27. For sufficiency purposes we consider all of the evidence—
including incompetent evidence—in the light most favorable to the State. Thus, in
-41-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
Nabors, the defendant had to prove that the trial court’s error in admitting lay
testimony identifying a controlled substance had a probable impact on the outcome
of trial, which he could only do by showing that all other competent and
incompetent evidence, taken in the light most favorable to the State, was likely
insufficient to support the charges. Here, by contrast, the State bears the burden of
proving the constitutional error was harmless beyond a reasonable doubt. As such,
these cases are entirely different.
Here the entire prosecution of defendant depends on Agent Ray’s testimony
to prove that the substance was cocaine. Without her testimony all that remains is
an uncorroborated assertion by an officer on the witness stand that defendant
agreed the substance was cocaine. Yet defendant also testified and denied that he
had said the substance was cocaine. Here the credibility of all those statements
must be weighed by the jury, by contrast to the sufficiency analysis in Nabors, in
which only evidence supporting the State’s case can be considered. The officer’s
testimony cannot be considered overwhelming under the constitutional harmless
error standard we apply here. I conclude that the State has failed to show that the
constitutional error here was harmless beyond a reasonable doubt and would hold
that defendant should receive a new trial on the charge of possession of cocaine.
This case can be summarized quite simply: Agent Ray provided the only
substantive evidence about the central issue in the case—the identity of a chemical
substance found in defendant’s possession—based entirely on test results produced
-42-
STATE V. ORTIZ-ZAPE
HUDSON, J., dissenting
and reported by another analyst (Agent Mills), whom defendant had no opportunity
to cross-examine. As such, he had no way to question the reliability of the process
by which those test results were obtained. Under Crawford, Melendez-Diaz,
Bullcoming, and Williams, this is a quintessential Sixth Amendment violation.
“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.” Melendez-Diaz, 557 U.S. at 325, 129 S. Ct. at 2540. Offering
defendant the opportunity to cross-examine Agent Mills, not just Agent Ray, was
required by the Sixth Amendment. Accordingly, I respectfully dissent.
Chief Justice PARKER joins in this dissenting opinion.
-43-