State v Poole
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-21 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 STATE OF NORTH CAROLINA v. Carteret County Nos. 08 CRS 55459, 09 CRS 1139 EDWARD EUGENE POOLE, JR. Appeal by Defendant from judgment entered 6 April 2010 by Judge Jack W. Jenkins in Superior Court, Carteret County. Heard in the Court of Appeals 16 August 2011. Attorney General Roy Cooper, by Assistant Attorney General Janette S. Nelson, for the State. Paul Y.K. Castle for Defendant. McGEE, Judge. Edward Eugene Poole, Jr. (Defendant) was convicted on 6 April 2010 of possession of a controlled substance in a local confinement facility and of having attained the status of an habitual felon. The trial court sentenced Defendant to 120 to 153 months in prison. Defendant appeals. Facts -2The evidence at trial tended to show that Defendant was employed as a tree cutter by Travis Sanderson (Mr. Sanderson). Defendant testified to the following. Defendant had a falling out with Mr. Sanderson and was fired by him. Defendant called Mr. Sanderson a few days later and asked to be paid for work he had performed. Mr. Sanderson told Defendant that when he found more work, he would "get back" to Defendant. Mr. Sanderson later called Defendant and told Defendant that he had "picked up" a girl and that the girl wanted Mr. Sanderson to get her some drugs. Defendant was a recovering drug addict, did not want to purchase drugs for Mr. Sanderson, and initially refused to do so. Mr. Sanderson called Defendant several more times and eventually approached Defendant in person. Mr. Sanderson promised to employ Defendant on a large treecutting job, but Defendant agreed. contacted law only if Defendant obtained for him. At trial, Mr. Sanderson testified that he had enforcement officers in informant to arrange a drug transaction target. drugs order to work as an with Defendant as a Mr. Sanderson admitted he made up the story about a woman seeking drugs. Mr. Sanderson's drug deal with Defendant occurred October 2008 in the parking lot of a fast-food restaurant. on 6 Mr. Sanderson met with Defendant and gave him $300.00 to buy the -3drugs. Defendant drove away and returned several hours later with a bag he said contained the drugs. Sanderson's truck and put the bag in Defendant got into Mr. the center console. Defendant testified that Mr. Sanderson retrieved the bag, handed Defendant a piece of the substance contained in the bag, and got out of his truck waving the bag. Defendant realized he was about to be arrested and put the piece Mr. Sanderson had given him in his mouth. working with Mr. Defendant was arrested by police officers Sanderson. Mr. Sanderson turned the bag containing the rest of the drugs to the officers. Defendant testified at trial that, while he was sitting on the ground during the arrest, he told police officers three times that Mr. Sanderson had given him "evidence." Defendant had told his first appearance on 7 October 2008, and the district court judge that he had a piece of evidence that Mr. Sanderson had given him and that he wanted to give it to his lawyer. The district court judge told the bailiff to take Defendant to speak with his lawyer, but the bailiff instead returned Defendant to the detention facility. Defendant then got the attention of a jailer, who took him to Lieutenant Ivey Eubanks (Lt. Eubanks). Eubanks. Defendant gave the substance to Lt. -4Defendant was charged with possession with the intent to sell or distribute cocaine, selling and distributing cocaine, and possession of a controlled substance in a local confinement facility. Defendant filed notice of his intent to raise the defense of entrapment. At trial, the State presented the testimony of Special Agent Nancy Gregory (Agent Gregory) of the North Carolina State Bureau of Investigation (SBI), who testified as to the results of a lab test performed Defendant's possession. Agent Brittany analysis of retained and testified Dewell the the to the substance that had been in Agent Gregory testified that Special (Agent substance gave that on the Dewell), in the bag police substance in performed which officers. the bag was a chemical Mr. Sanderson Agent crack Gregory cocaine. Agent Gregory also testified that the substance in Defendant's possession while Defendant was in the jail was "a separate case analyzed by a different chemist at the laboratory." Agent Gregory did not identify that chemist, nor did she state that she had reviewed that chemist's work. The record on appeal shows that this lab report was prepared by Agent Amanda Howell (Agent Howell). retrieved from However, Agent Gregory testified that the item Defendant was also a cocaine-based Defendant did not object to Agent Gregory's testimony. substance. The item -5retrieved State's from Defendant Exhibit 3-A was (Exhibit admitted 3-A), into and evidence the bag as the containing Exhibit 3-A was admitted as State's Exhibit 3 (Exhibit 3). The trial court instructed the jury on the defense of entrapment with respect to the charges of possession with the intent to sell or distribute (PWISD) distributing a controlled substance. and selling and However, the trial court instructed the jury that the defense of entrapment did not apply to the charge of possession of a controlled substance in a local confinement facility. The jury found Defendant not guilty of PWISD and not guilty of selling and distributing a controlled substance. The jury found Defendant guilty of possession of a controlled substance in a local confinement facility. Analysis Defendant first argues: The trial court committed plain error in admitting the testimony of SBI Agent Nancy Gregory in regard to an alleged controlled substance . . . and also admitting the laboratory report on which Agent Gregory relied in her testimony . . . because the laboratory report at issue had been prepared by a non-testifying SBI agent and Agent Gregory testified solely based on the laboratory report prepared by the nontestifying agent, in violation of . . . Defendant's right to confrontation guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution." -6We agree. At trial, Defendant failed to object to the admission of Agent Gregory's testimony identifying Exhibits 3 and 3-A as a schedule II, cocaine-based substance, and to the lab report upon which Agent Gregory's testimony was based. Defendant argues, however, that the trial court's admission of Agent Gregory's testimony and the lab report was plain error. To successfully argue that the trial court's alleged error constitutes plain error, Defendant has the burden of showing either "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations omitted). "The Confrontation admission of unavailable Clause testimonial to testify of evidence and the the Sixth Amendment bars unless the declarant accused has had a is prior opportunity to cross-examine the declarant." State v. Locklear, 363 (2009) N.C. omitted). 438, 452, 681 "[F]orensic S.E.2d analyses 293, 304 qualify as (citations 'testimonial' statements, and forensic analysts are 'witnesses' to which the Confrontation Clause applies." (citation omitted). Id. at 452, 681 S.E.2d at 304-05 This bar to the admission into evidence of -7forensic analyses performed by non-testifying analysts, whom a defendant has not had a prior opportunity to cross-examine, applies to in-court testimony as well as to documents containing forensic analyses, such as lab reports. Id. at 451-52, 681 S.E.2d at 304. In State v. Brewington, ___ N.C. App. ___, ___, 693 S.E.2d 182, 189 (2010), this Court stated a four-part test to determine whether forensic analysis Confrontation Clause. evidence runs afoul of the Under the four-part test, our Court must: (1) determine whether the [evidence] at issue is testimonial; (2) if the [evidence] is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant; (3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert's report or analysis; and (4) if the testifying expert summarized another nontestifying expert's report or analysis, determine whether the admission of the [evidence] through another testifying expert is reversible error. Id. Applying this test, the Brewington Court found that a lab report prepared by a non-testifying analyst was inadmissible because the defendant did not have a prior opportunity to crossexamine the non-testifying analyst. Id. This Court further found that it was "clear from the testimony of [the testifying -8analyst] that she had no part in conducting any testing of the [alleged controlled] substance, nor independent analysis of the substance." at 190. did she conduct any Id. at ___, 693 S.E.2d Accordingly, this Court determined that the testifying analyst in Brewington: merely reviewed the reported findings of [the non-testifying agent], and testified that if [the non-testifying agent] followed procedures, and if [the non-testifying agent] did not make any mistakes, and if [the non-testifying agent] did not deliberately falsify or alter the findings, then [the testifying agent] "would have come to the same conclusion that she did." Id. to Because the defendant had not been afforded the opportunity cross-examine the non-testifying analyst, the Brewington Court held that the admission into evidence of the testifying analyst's testimony also violated the Confrontation Clause. Id. This Court applied Brewington's four-part test in State v. Williams, ___ N.C. App. ___, 702 S.E.2d 233 Williams, we determined that the testimony (2010). of a In chemist identifying a substance as cocaine-based was inadmissible. The Williams decision focused on (1) the fact that the chemist's testimony was based upon an inadmissible lab report prepared by a different non-testifying chemist; and (2) that the testifying chemist did not personally perform any tests or witness any tests being performed on the alleged cocaine-based substance. -9Id. at ___, 702 S.E.2d at 237-38. In reaching its holding, the Williams Court noted that, in State v. Hough, ___ N.C. App. ___, 690 S.E.2d 285 (2010), this Court reached a different conclusion where a forensic chemist's testimony "was substantively the same as the testimony given by the expert" in both Brewington and Williams. Court Id. at ___, 702 S.E.2d at 237. concluded that "Brewington However, the Williams correctly emphasizes the importance of cross-examination as a tool to expose, among other things, the care (or lack thereof) conducted tests on a substance." with which a chemist Id. In the present case, Defendant argues that both Exhibits 3 and 3-A, as well as the testimony of Agent Gregory based upon the same lab report, were inadmissible. by Agent Howell was a forensic The lab report prepared analysis prepared for the prosecution of a criminal charge and was therefore "testimonial" evidence. Locklear omitted). Agent Howell was unavailable to testify at trial because she county[.]" given a "was not at 452, 681 released S.E.2d from a at 304-05 subpoena (citation from another The State has failed to show that Defendant was prior Accordingly, the opportunity to admission into cross-examine evidence violated Defendant's confrontation right. S.E.2d at 305. of Agent the lab Howell. report See id. at 452, 681 -10Defendant also argues that Agent Gregory's testimony, based upon the inadmissible lab report, was likewise inadmissible. In the present case, Agent Gregory testified as to her review of a forensic analysis performed by another agent in connection with the prosecution of a criminal charge; Agent Gregory's testimony was therefore "testimonial." Agent Gregory's testimony was based upon the lab report prepared by Agent Howell, and as noted above, the State has failed to show that Defendant was given a prior opportunity therefore to determine cross-examine whether Agent Agent Howell. Gregory "was We must offering an independent opinion or merely summarizing another non-testifying expert's report or analysis[.]" Brewington, ___ N.C. App. at ___, 693 S.E.2d at 189. Agent Gregory testified that Exhibit 3-A was analyzed by a chemist, other than herself, in the SBI laboratory. Although Agent Gregory testified that she reviewed "the case file . . . before it was published to the officers," the record contains no indication that Agent Gregory personally performed or witnessed any tests performed on Exhibit 3-A. Notably, Agent Gregory testified that she was called in at 11:00 a.m. on the day of trial to Howell, serve who as had Defendant's case. a "substitute originally been analyst" in subpoenaed place to of Agent testify in As in Williams, we find the following facts -11to be decisive: there is no indication in the record that Agent Gregory performed any tests on Exhibit 3-A, nor is there any indication that Agent Gregory was performed tests on Exhibit 3A. ___, 702 S.E.2d at 237-38. present when Agent Howell See Williams, ___ N.C. App. at We therefore conclude that Agent Gregory was "merely summarizing another non-testifying expert's report or analysis[,]" Brewington, ___ N.C. App. at ___, 693 S.E.2d at 189, and that the admission of Agent Gregory's testimony was error. Finally, we must determine "whether the admission of the [evidence] error." through Id. another testifying expert is reversible Defendant argues that the erroneous admission of the lab report and Agent Gregory's testimony identifying Exhibit 3-A as cocaine constituted plain error because, without the admission of that evidence, the State would have failed to meet its burden of proving every element of the offense possession of a controlled substance in a beyond a reasonable doubt. local confinement facility Defendant specifically argues that, without the improperly admitted evidence, the State failed to prove that Exhibit 3-A was a controlled substance. We agree. The offense of possession of a controlled substance in a local confinement facility requires proof that a defendant was in possession of a controlled substance. See N.C. Gen. Stat. ยง -1290-95(a)(3) and (e)(9) (2009). As explained above, in Williams, ___ N.C. App. at ___, 702 S.E.2d at 237-38, this Court held that expert testimony identifying evidence as cocaine was admitted in error. The Williams Court then determined that, other than the improperly admitted evidence, the only proof offered to show the identity of the substance was the testimony of two police officers who identified the substance as "crack cocaine" and a statement by the defendant admitting that cocaine. Id. at ___, 702 S.E.2d at 238. the substance was The Williams Court concluded that the "testimony of defendant and police officers alone, despite both officers' credentials and experience, [wa]s insufficient to show that the substance possessed was cocaine. The State must still present evidence as to the chemical makeup of the substance." Id. (citations omitted). In the present case, Defendant testified that he had a "piece of dope . . . in the jail[.]" Jones), of the Detention Office, testified that Division, he observed Martin Jones (Officer Carteret Lt. County Eubanks Sheriff's retrieve a "[y]ellowish rock-like substance" from Defendant's pocket, and Lt. Eubanks similarly testified that he retrieved a "yellowish in color, rock type" substance which was consistent with being crack cocaine. The statements of Defendant, Officer Jones, and Lt. Eubanks were the only proof offered as to the identity of -13Exhibit 3-A, other than the improperly admitted lab report and testimony of Agent Gregory. As in Williams, this testimony was "insufficient to show that the substance possessed was cocaine." Id. Because the State failed to "present [admissible] evidence as to the chemical makeup of the substance[,]" id., it failed to prove that the substance at issue was a controlled substance. Accordingly, the trial court's improper admission into evidence of the lab report and Agent Gregory's testimony identifying Exhibit 3-A as cocaine constituted plain error. In light of our holding, we do not address Defendant's remaining argument regarding ineffective assistance of counsel. See State v. Ewell, 168 N.C. App. 98, 107, 606 S.E.2d 914, 920 (2005). testimony Because the trial court's admission of Agent Gregory's and the lab report was plain entitled to a new trial. New trial. Judges ERVIN and McCULLOUGH concur. Report per Rule 30(e). error, Defendant is
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