State v Williams
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-470 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Mecklenburg County Nos. 09 CRS 38740-41, 61949 JAMAL NEMAY WILLIAMS Appeal by Defendant from judgments entered 3 August 2010 by Judge Calvin E. Murphy in Superior Court, Mecklenburg County. Heard in the Court of Appeals 1 November 2011. Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Mercedes O. Chut for Defendant-Appellant. McGEE, Judge. Jamal conviction Nemay for Williams possession habitual felon status. of (Defendant) heroin and appeals of having from his attained We find plain error and remand for a new trial. Defendant was indicted for possession of heroin, possession of cocaine, and having attained habitual felon status. Prior to trial, the possession of cocaine charge was dismissed. Evidence -2at trial showed that Officer Paul Blackwood (Officer Blackwood) of the Charlotte-Mecklenburg Police Department was on patrol on 2 May 2009 when he received a request to assist an undercover operation. Officer Blackwood was narcotics transaction had occurred Bojangles restaurant and that consuming narcotics. Based informed in the on the that parking suspects this a possible lot were of a possibly information, Officer Blackwood was directed to approach the suspect vehicle. Officer Blackwood pulled up next to the vehicle and observed two men inside. Defendant was sitting in the driver's seat, and another individual was in the back seat. When Officer Blackwood approached the driver's side of the vehicle, he saw a small bag containing powder in Defendant's lap. Officer contain heroin. vehicle. Blackwood testified that the bag appeared to He took the bag and placed it on top of the After Defendant exited the vehicle, Officer Blackwood saw another item on the front floorboard of the driver's side. Officer Blackwood testified that this item appeared to contain cocaine. arrest Thereafter, Officer Blackwood placed Defendant under and transported searched to the Defendant's police station wished to cooperate with police. vehicle. after Defendant indicating that was he -3Detective Sidney Lackey (Det. Lackey) spoke to Defendant on 2 May 2009, after learning that Defendant had been arrested on drug charges involved and with wanted to cooperate. Defendant's previous police work. arrest, Det. knew but Lackey was Defendant not from Defendant signed a Miranda waiver form and told Det. Lackey that the substances recovered were "dope" and "cut." Based on Det. Lackey's training and experience, he believed that Defendant was referring to heroin. A video of the interview was also entered into evidence. The indicated State introduced that the a packet lab report recovered contained 0.03 grams of heroin. into from evidence that Defendant's lap The lab report was admitted into evidence without objection from Defendant. The heroin was also admitted into evidence. Defendant testified in his own defense. He claimed that on 2 May 2009, he was driving when a friend, James Stewart (Mr. Stewart), flagged him down and asked for a ride to Bojangles. Upon arriving at Bojangles, Defendant exited the vehicle to purchase a snack, while Mr. Stewart stayed in the back seat of the vehicle. When Defendant returned to the vehicle, Stewart yelled "police" and threw something at the back of Defendant's head. Defendant then noticed a bag fall onto the floorboard of -4the car, but claimed that he did not know what was in the bag at the time. However, Defendant admitted that he was arrested for possession of heroin and cocaine shortly thereafter, and testified that he later discovered that one of the substances was heroin. A jury found Defendant guilty of possession of heroin and of having attained habitual felon status on 3 August 2010. The trial court sentenced Defendant to a presumptive-range term of 121 to 155 months in prison. Defendant argues that the trial court committed plain error by admitting the lab report into evidence. that the violated lab his report Sixth constituted Amendment Defendant contends impermissible confrontation hearsay because right author of the report did not testify at trial. and the See Melendez- Diaz v. Massachusetts, ___ U.S. ___, 174 L. Ed. 2d 314 (2009). Defendant failed to object to the introduction of the lab report and thus did not preserve this issue for appellate review. This Court's review is therefore limited to whether the trial court's admission of the lab report constituted plain error. See N.C.R. App. P. 10(a)(4). Plain error is error "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury -5reaching a reached." 251 different than it otherwise would have State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, (1987), (1988). verdict cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 Our Supreme Court has explained: [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial[.] State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal citations omitted). Defendant argues that admission of the lab report constituted plain error because it was the only evidence of an essential element of the offense for which he was convicted that established that the substance found in Defendant's vehicle was heroin. We agree. Testimonial statements from unavailable witnesses presented at trial without a defendant having an opportunity to crossexamine those witnesses prior to trial violate the Confrontation Clause of the United States Constitution. Crawford v. Washington, 541 U.S. 36, 50-52, 158 L.Ed.2d 177, 187 (2004). In the present case, the lab report was testimonial in nature. See -6Melendez Diaz, ___ U.S. at ___, 174 L.Ed.2d at 321 22 (holding that reports of chemical analyses were testimonial in nature, and subject to Additionally, opportunity Therefore, the there to Confrontation was no evidence cross-examine admitting the Clause the report that requirements). Defendant of author had report. constituted that a violation Defendant's rights under the Confrontation Clause. an of See State v. Jones, ___ N.C. App. ___, ___, 703 S.E.2d 772, 774 (2010). Defendant was charged with possession of heroin. This charge requires that the State prove beyond a reasonable doubt that the substance found in Defendant's lap was in fact heroin. See N.C. Gen. Stat. ยง 90 95(a)(1)(2009). At trial, Officer Blackwood testified that the packet he observed on Defendant's lap appeared to contain heroin. Officer Blackwood also testified that the other packet recovered from the floorboard of the vehicle appeared to contain cocaine. Det. Lackey testified that Defendant told him the substances in the two packets were "dope" and "cut." Det. Lackey testified that he understood "dope" to refer to heroin. Det. Lackey understood "cut" to be "an agent that is used to take some of the edge off the actual heroin, so you can use it to cut the heroin." -7Nothing in the transcript indicates that Det. Lackey personally observed the two packets or their contents. The testimony of defendant and police officers alone, despite both officers' credentials and experience, is insufficient to show that the substance possessed was [an illegal narcotic]. The State must still present evidence as to the chemical makeup of the substance. State v. Nabors, ___ N.C. App. ___, ___, 700 S.E.2d 153, 158 (2010) ("[M]ere lay opinion that a substance is a controlled substance based solely on its physical appearance is insufficient evidence from which a jury could find beyond a reasonable doubt that the substance is, in fact, controlled."); State v. Meadows, ___ N.C. App. ___, ___, 687 S.E.2d 305, 309 ("'[E]xisting precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.'") (quoting State v. Ward, 199 N.C. App. 1, 26, 681 S.E.2d 354, 371 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738 (2010)), cert. denied, 364 N.C. App. 245, 699 S.E.2d 640 (2010); State v. Llamas-Hernandez, 189 N.C. App. 640, 653, 659 S.E.2d 79, 87 (2008) (Steelman, J., concurring in part and dissenting in part), rev'd and dissent adopted, 363 N.C. 8, 673 S.E.2d 658 (2009). State v. Williams, ___ N.C. App. ___, ___, 702 S.E.2d 233, 238 (2010). In the present case, the only admissible evidence presented at trial was lay testimony. Det. Lackey testified concerning Defendant's statement that the substances recovered were "dope" -8and "cut," and Det. Lackey testified that he understood "dope" to refer to heroin. Officer Blackwood testified that the substance recovered from Defendant's lap appeared to be heroin, and the substance recovered from the floorboard appeared to be cocaine. This testimony was based solely on visual observation, and not on chemical analysis. identification of one of Officer Blackwood's tentative the packets cocaine was, in fact, incorrect. containing powder as This fact demonstrates the reasoning behind the requirement that suspected illegal drugs be identified at trial by properly admitted testimony and reports supported by expert chemical analysis of the suspected contraband. We conclude that the erroneous admission of the lab report was not harmless and probably resulted in the jury's reaching a different verdict therefore, it than constituted it otherwise plain error. would See have reached; id. For foregoing reasons, Defendant is entitled to a new trial. New trial. Judges ELMORE and McCULLOUGH concur. Report per Rule 30(e). the
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