No legislative session would be complete without amendments to the state’s DWI laws. The 2016 short session upholds this tradition by amending the procedures that govern the admissibility of chemical analyses in impaired driving trials in district and superior court. Continue reading
Tag Archives: notice and demand
Notice and Demand — One More Time
I recently wrote here about North Carolina’s notice and demand statutes and how they allow the State to obtain a constitutionally valid waiver of confrontation clause rights with respect to forensic reports and chain of custody evidence. The purpose of that post was to remind litigants of the existence of the statutes. But knowing about the statutes isn’t enough. Proper execution also is required. The recent court of appeals’ case, State v. Whittington, in which the State lost the benefit of the notice and demand statute because of improper execution, emphasizes that point.
Whittington was a drug trafficking case. Officers seized pills and sent them to the SBI for analysis. Chemical analyst Brittany Dewell prepared a lab report identifying the pills as oxycodone, an opium derivative weighing 4.3 grams. The State later filed a “Request for Voluntary Discovery” notifying the defendant that it intended
to introduce the following evidence in the trial of the above referenced criminal case: . . . Pursuant to G.S. § 90-95(g), any and all reports prepared by the N.C. State Bureau of Investigation concerning the analysis of substances seized in the above captioned case. A copy of report(s) will be delivered upon request.
There was no evidence that the defendant requested a copy of any reports. When the State sought to offer the lab report into evidence at trial without calling Dewell, the defendant objected on confrontation clause grounds. The trial court overruled the objection. The jury found the defendant guilty and he appealed.
The issue on appeal was whether the defendant had waived his confrontation clause rights under G.S. 90-95(g), the relevant notice and demand statute. Conceding that there was no “definitive” evidence that the defendant ever received a copy of the report as required by the statute, the State argued that the defendant bore the burden of proving that State did not send him the report. The court rejected this argument noting that the State bears the burden of proving that a defendant made a knowing and intelligent waiver. It further noted that the State could not shift this burden to the defendant by stating, as had been done in the State’s Request for Voluntary Discovery, that a “[a] copy of report(s) will be delivered upon request.” The court concluded: G.S. 90-95(g)(1) “requires the State to not only give notice to Defendant prior to trial of any lab report it intends to introduce at trial without the testimony of the analyst, but to provide the lab report to Defendant as well.”
The State’s fallback argument was the report was in fact sent to the defendant. The State argued that a supplementary discovery notice “appears to indicate” that the report was sent to the defense. The court rejected this argument, stating: “we do not find that this notice ‘appears to indicate’ that Defendant received a copy of the lab report, much less that it satisfied the State’s burden of proving Defendant received the lab report.” The notice merely included a handwritten notation at the bottom stating “SBI Lab.” The court determined that it had no way of knowing who wrote the notation, when it was written, or what it signified. The court also rejected the notion that the prosecutor’s unsworn statement to the trial court that a copy of the report was delivered to defense counsel was sufficient to meet the State’s burden of proving that the defendant waived his constitutional rights. The court reasoned that even if the statement was true, there was no indication when the lab report was delivered to the defendant.
The court held that because there was no evidence that the State timely sent the defendant a copy of the lab report as required by G.S. 90-95(g), the defendant’s obligation to object was not triggered and there was no waiver of confrontation rights. It was thus error for the trial court to admit the lab report into evidence and a new trial was required.
Whittington isn’t the only case in which a misstep in execution precluded the State from taking advantage of a notice in demand statute. In State v. Blackwell, 207 N.C. App. 255 (2010), the court also ordered a new trial in a drug case. In Blackwell, the trial court admitted laboratory reports regarding the identity, nature, and quantity of the controlled substances without testimony by the preparer. However, as in Whittington, the State failed to comply with the notice and demand provisions. In that case, instead of sending notice directly to the defendant, who was pro se, the State sent notice to a lawyer who was not representing the defendant at the time.
These cases stand as a reminder: It’s not enough for the prosecution to remember that the notice and demand statutes exist. To procure a valid waiver of confrontation rights, proper execution is required.
Don’t Look a Gift Horse in the Mouth
As I explain in more detail here, notice and demand statutes allow the State to obtain a constitutional waiver of confrontation rights so that forensic lab reports and related items can be admitted without the presence of the preparer. Nevertheless, I get a lot of calls from panicked prosecutors wondering how they are going to overcome Crawford with respect to a lab report because the preparer is (choose one): dead, retired and has moved away, on National Guard duty in Afghanistan, or scheduled for a C-section. Here’s how the typical conversation goes:
ME: Did you give notice under the notice and demand statute?
PROSECUTOR: What notice and demand statute?
The failure to take advantage of these statutes is so pervasive that a recent criminal case went all the way up the N.C. Supreme Court before the State realized it had neglected to argue notice and demand. In that recent case–State v. Jones–the N.C. Court of Appeals issued an opinion awarding the defendant a new trial in part because the trial court committed plain error by admitting a SBI crime lab report into evidence without testimony by the analyst. The court reasoned that the report was testimonial and its admission violated Crawford. The State then filed petitions for writ of supersedeas and discretionary review with the N.C. Supreme Court, arguing that the court of appeals erred by ordering a new trial. After the Court granted the petitions, the State filed a motion to amend the record on appeal to include a copy of the SBI report and a copy of the notice given under the applicable notice and demand statute. These documents weren’t in the record filed in the court of appeals and the State didn’t argue notice and demand in its original brief. The Court granted the motion to amend the record and remanded the case for reconsideration in light of the amended record. On the second go-around the court of appeals easily disposed of the case: the State gave proper notice; the defendant never objected; the confrontation issue was waived.
The General Assembly gave the State a gift when it enacted new and amended existing notice and demand statutes after Melendez-Diaz. Again, these statutes provide a vehicle for obtaining a constitutional waiver of confrontation rights. But prosecutors have to open the gift to realize its benefits. As a refresher, here’s a cheat sheet of North Carolina’s seven notice and demand statutes: