North Carolina Criminal Law NC Criminal Law

Last Friday, the North Carolina Supreme Court decided State v. Locklear, holding, in part, that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. Because the case raises questions about the viability of offering a “substitute analyst” to avoid a Crawford problem, I offer this post.

In Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in the field of forensic pathology. Butts testified to a 1997 autopsy report on a victim, prepared by Karen Chancellor, a forensic pathologist. Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim’s] death was blunt force injuries to the chest and head.” Slip Op. at 18. Butts also testified “to the results of dental analysis performed by Dr. Jeffrey Burkes,” id. at 18-19, included in the autopsy report. Butts stated “that, by comparing [the victim’s] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Id. at 19. Neither Chancellor nor Burkes testified at trial. On appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt.

What is unclear about Locklear-at least from the court’s decision-is whether Butts testified to an opinion on cause of death and identity based on facts or data contained in the reports or whether he simply read the reports into evidence. This is an important distinction. If the latter is true-that he simply read the reports into evidence-Locklear was a slam dunk for the defense. As I stated in an earlier paper on the implications of Melendez-Diaz, available here, in such a scenario, the report is being received as substantive evidence; since it is clearly testimonial under Melendez-Diaz, it may not be admitted unless the preparer testifies or if the State can establish unavailability and a prior opportunity to cross-examine. A close look at the court’s opinion suggests that this, in fact, is what happened. The opinion states that Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim’s] death was blunt force injuries to the chest and head.” He also testified “to the results of dental analysis performed by [Burkes]” that “by comparing [the victim’s] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Thus, it appears that Butts did not testify to an independent opinion on either point, but rather simply recounted opinions formed by the non-testifying experts.

If Butts had testified to his own opinion as to cause of death and identity, based on materials reasonably relied upon by experts in the field of forensic pathology, the case could have come out differently. As noted in the paper cited above, pre-Melendez-Diaz cases in North Carolina and in the vast majority of jurisdictions held that in this context the underlying report is not being admitted for the truth of the matter asserted. Rather, it is admitted as a basis of the testifying expert’s opinion. The courts reasoned that since the evidence is not hearsay, it is not covered by the Crawford rule. After all, Crawford itself recognized that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9. Furthermore, the expert is on the stand and may be cross-examined about the basis of his or her opinion. Of course, Melendez-Diaz does not address this issue. In light of that, it would seem somewhat surprising for the North Carolina Supreme Court to overrule the pre-Melendez-Diaz law on point in a mere two paragraphs of analysis, without mentioning the issue.

In yesterday’s frivolous post, I said that legal news was slow. Not anymore! The United States Supreme Court decided Melendez-Diaz v. Massachusetts yesterday. It’s a big Confrontation Clause case, and I expect that Jessica Smith, the Crawford expert on our faculty, will eventually weigh in with an expert analysis. But since Jessie’s still busy administering the Superior Court Judges’ conference, here are my preliminary thoughts.

First, the basics of the case. Mr. Melendez-Diaz was arrested in Massachusetts after an apparent drug sale, was found to be in possession of 19 bags of white powder, and was charged with trafficking in cocaine. The white powder was submitted for forensic analysis, and an analyst determined that it was cocaine. The analyst completed a report to that effect and the state introduced the report at trial, over the defendant’s Confrontation Clause objection, without having the analyst present. The defendant was convicted. He appealed, the state appellate courts affirmed, and the Supreme Court reversed 5-4, with Justice Scalia heading an odd coalition of Justices and writing the Opinion of the Court. 

The Court held that the report was prepared for the purpose of use at trial, and was therefore “testimonial” under Crawford. It rejected various arguments raised by the state in an effort to distinguish Crawford. For example, the state argued that lab reports are like business records, but the Court observed that business records are not prepared for the purpose of use at trial. The state argued that an analyst’s opinion was unlikely to change once “confronted” with the defendant, but the Court both disputed the premise — discussing at length the prevalence of dishonest or incompetent analysts — and found the likely effectiveness of confrontation irrelevant to the constitutional requirement thereof.

Of particular importance, the Court rejected the state’s argument that the Confrontation Clause was satisfied because the defendant could have subpoenaed the analyst, concluding that the burden is “on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” However, it embraced the notion that the defendant could be required to “assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report.” Such “notice-and-demand” statutes, the Court said, are simply “procedural rules” that specify when a defendant must assert his Confrontation Clause rights.

So, how does this apply to North Carolina? First, it appears that the provision in G.S. 90-95(g) allowing lab reports to be admitted in drug cases if the state notifies the defendant of its intent to introduce a report and the defendant fails to object survives Melendez-Diaz. It seems to fit within the Court’s analysis of notice-and-demand statutes. Second, the rationale of State v. Forte, 360 N.C. 427 (2006), which held, in part, that the results of serological testing conducted by an SBI agent were nontestimonial business records, has been undermined by Melendez-Diaz. Thus, to admit a report of such testing — or similar testing, such as DNA analysis — without a stipulation by the defendant as to admissibility, the state will need to call the relevant analyst. Third, who is the “relevant analyst”? In other words, what if Analyst A does the testing but is on vacation at the time of trial, so Analyst B testifies? Nothing in Melendez-Diaz addresses this situation directly. My guess — and I’ll defer to Jessie’s opinion, if it differs from mine — is that such a procedure is OK, at least if Analyst B offers an opinion and Analyst A’s report is admitted only as a basis for that opinion, rather than for the truth of the matter asserted. In that scenario, Analyst A’s report isn’t testimonial and so the defendant’s inability cross-examine Analyst A is immaterial. Fourth, what impact will Melendez-Diaz have in DWI cases? My very tentative thoughts are as follows. As to blood and urine tests, G.S. 20-139.1(c1) says that these analyses are admissible in district court, period, and are admissible in superior court if the defendant doesn’t object at least five days before trial. After Melendez-Diaz, I don’t think they’re admissible in district court without the analyst being present, but I suspect that the superior court provision will be held to fit in the notice-and-demand category and so will survive. (I’m less sure about the survival of this statute than I am about the drug statute, which more clearly puts the burden on the state to provide notice.) As to breath tests, which are presently admissible without the Intoxilyzer operator being present under G.S. 20-139.1(a) and State v. Heinricy, 183 N.C. App. 585 (2007), I suspect that they may be admitted now only if the machine operator is present — or, of course, if the defendant stipulates to their admissibility.

I can’t emphasize enough that all of these thoughts are preliminary. I’m still digesting the case and thinking about its North Carolina ramifications. If you disagree with my analysis, post a comment. If you convince me that I’m wrong, I’ll say so. And I’ll post further thoughts, news, and ideas here as they arise.