North Carolina Criminal Law NC Criminal Law

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.