State v Ortiz-Zape
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA10-1307 NORTH CAROLINA COURT OF APPEALS Filed: 19 July 2011 STATE OF NORTH CAROLINA v. Mecklenburg County No. 07CRS222314 MARIO EDUARDO ORTIZ-ZAPE, Defendant. Appeal by defendant from judgment entered on 19 February 2010 by Judge Jerry Cash Martin in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 April 2011. Attorney General Roy A. Cooper, III, by Assistant Attorney General Tenisha S. Jacobs, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendantappellant. STROUD, Judge. Defendant appeals his conviction for felony possession of cocaine. For the foregoing reasons, we reverse in part and vacate. I. Background The State s evidence tended to show that on 16 March 2007 -2Charlotte Mecklenburg Police Officer Craig Vollman was assigned to marked patrol car duty; that night, while in the parking lot of a gas station, Officer Vollman observed defendant driving a car with a temporary paper tag. whether he had the Officer Vollman asked defendant requisite registration paperwork. response, defendant began to go through the contents In of the glove box. Officer Vollman shined his flashlight inside the car to look for weapons and noticed a sandwich bag containing a white substance in the door compartment. Officer Vollman then placed defendant under arrest and called for a backup police officer. Charlotte Mecklenburg defendant to jail. Police Officer Darryl Soto took Officer Soto weighed the white substance, and then placed it in [an] envelope with clear tape and put [his] initials on it. Defendant was indicted for possession with intent to sell or deliver a controlled substance. At trial, criminalist Department the Tracey crime State Ray lab. introduced of Ms. the Ray the Charlotte expert testimony Mecklenburg testified, over objection, that the white substance was cocaine. of Police defendant s Ms. Ray had not tested the white substance herself, nor had she been present during the tests; instead, Ms. Ray based her opinion on her peer review of the testing analysis prepared by the testing -3analyst, Ms. Jennifer Mills. The peer-review consisted of the following: [Ms. Ray] 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 [she] also reviewed the data that was still on the instrument and made sure that was all there too. The jury found defendant guilty of possession of cocaine, and the trial court entered judgment. II. Defendant argues Defendant appeals. Chemical Analysis that Ms. Ray s testimony regarding the identity of the white substance violated his Sixth Amendment right to confrontation. We agree. This Court reviews alleged violations of constitutional rights de novo. Under the de novo standard of review, this Court considers the matter anew and freely substitutes court. 233, 236 its own judgment for that of the trial State v. Williams, ___ N.C. App. ___, ___, 702 S.E.2d (2010) (citation, quotation marks, and omitted). The Sixth Amendment to the United States Constitution provides that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Our Court in State v. Brewington, ___ N.C. App. ___, 693 S.E.2d 182 (2010), recently traced the lineage of the Confrontation Clause as it applies to situations where a chemist testifies to a peer review of tests done by other brackets -4chemists. After discussing the development of this line of cases, the Brewington Court noted that: . . . . to allow a testifying expert to reiterate the conclusions of a non-testifying expert would eviscerate the protection of the Confrontation Clause. The Court then went on to describe a fourpronged test which applies in these cases: (1) determine whether the document at issue is testimonial; (2) if the document 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 non-testifying expert s report or analysis, determine whether the admission of the document through another testifying expert is reversible error. Id. at ___, 702 S.E.2d at 236 (citations, quotation marks, ellipses, and brackets omitted). While here no actual document, such as a laboratory report, was admitted at trial, we find the Williams analysis to still be applicable and dispositive as the constitutional issues raised -5are the same. See id. Ms. Ray s statements regarding Ms. Mills s findings were certainly testimonial. See id. at ___, 702 S.E.2d at 236 ( Turning now to the present case, it is clear that the report detailing the tests done by [the testing chemist] and then peer reviewed and testified about by [the testifying chemist] is testimonial. See Melendez Diaz v. Mass., ___ U.S. ___, ___, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314, 321 (2009) (noting that testimonial evidence includes statements that were made under circumstances which would lead an objective witness reasonably available for to use believe at a later that the trial ) statement (quoting would be Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177, 193 (2004)). ). Also, as in Williams, there is no evidence that defendant was given an opportunity to cross-examine Ms. Mills. See id. at ___, 702 S.E.2d at 236-37. Although independent the State analysis conducted by Ms. conducted in Williams of Ray contends the lab was more where the that Ms. Ray offered an results, the peer review akin the peer review to testifying chemist did not conduct any tests on the substance, nor was she present when [the testing chemist] did. Id. at ___, 702 S.E.2d at 237. Just as in Williams, [w]e think that these facts are decisive and show that [Ms. Ray] could not have provided her own -6admissible analysis of the relevant underlying substance. Id. Accordingly, it was error for Ms. Ray to testify as to Ms. Mills s findings. See id. at ___, 702 S.E.2d at 237-38. We must now consider whether Ms. Ray s erroneously allowed testimony constitutes reversible error. S.E.2d at 736. Constitution of See id. at ___, 702 A violation of the defendant s rights under the 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. Gen. Stat. § 15A-1443(b) (2007). Defendant was convicted of felony possession of cocaine, in violation of North Carolina General Statute § 90-95 (2007). An essential element of felony possession of cocaine is evidence that the cocaine. substance See id. chemical analysis. S.E.2d at 238. in defendant s Cocaine can possession only be was identified actually through See Williams, ___ N.C. App. at ___ , 702 The State did not properly present any chemical analysis which identified the white substance as cocaine. We therefore conclude that it was reversible error for the trial court to allow Ms. Ray s testimony. Furthermore, as the State failed to prove all of the elements of the crime charged, see N.C. Gen. Stat. § 90-95, defendant s motion to dismiss should -7have been granted just as defendant also argues on appeal. See State v. Martin, 195 N.C. App. 43, 50, 671 S.E.2d 53, 59 (2009) ( The proper standard of review on a motion to dismiss based on insufficiency of the evidence is the substantial evidence test. The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged[.] (citation omitted)); see generally State v. Hunt, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (May 3, 2011) (No. COA10-666) ( As there was insufficient evidence of both of the charges against defendant and the trial court erred in not granting defendant's motion to dismiss, we reverse and vacate defendant's convictions[.] ) III. Conclusion We reverse the ruling of the trial court allowing the testimony of Ms. Ray regarding the white substance found in the car with defendant. We also reverse the denial of defendant s motion to dismiss as the State failed to properly present an essential element of the crime charged. As we are reversing the trial court s ruling regarding defendant s motion to dismiss the judgment must be vacated. Thus, we vacate the judgment, and we therefore need not address defendant s other issue on appeal. REVERSED IN PART; VACATED. Judges MCGEE and BEASLEY concur. -8Report per Rule 30(e).
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