State v. Craven

IN THE SUPREME COURT OF NORTH CAROLINA

No. 322PA10

FILED 27 JUNE 2013

STATE OF NORTH CAROLINA

v.

MARCUS ARNELL CRAVEN

On discretionary review pursuant to N.C.G.S. ' 7A-31 of a unanimous

decision of the Court of Appeals, 205 N.C. App. 393, 696 S.E.2d 750 (2010), vacating

in part and finding no error in part in judgments entered on 13 March 2009 by

Judge Kenneth Titus in Superior Court, Chatham County, and remanding for

resentencing. Heard in the Supreme Court on 13 February 2013.

Roy Cooper, Attorney General, by Daniel P. O’Brien, Assistant Attorney
General, for the State-appellant.

Anne Bleyman for defendant-appellee.

Law Offices of John R. Mills NPC, by John R. Mills; and Rudolf Widenhouse
& Fialko, by M. Gordon Widenhouse, for North Carolina Advocates for
Justice, amicus curiae.

JACKSON, Justice.

In this appeal we consider whether the admission of lab reports through the

testimony of a substitute analyst violated defendant’s Sixth Amendment right to

confront the witnesses against him. Because the testifying analyst did not give her

own independent opinion, but rather gave “surrogate testimony” reciting the testing

analysts’ opinions, we affirm the decision of the Court of Appeals holding that there

was a Confrontation Clause violation. See Bullcoming v. New Mexico, ___ U.S. ___,
 STATE V. CRAVEN

Opinion of the Court

___, 131 S. Ct. 2705, 2716 (2011). Defendant is entitled to a new trial for the sale or

delivery charge arising from the offense date of 6 March 2008. However, because

the conspiracy convictions were not affected by the erroneous admission of the

substitute analyst’s testimony, we reverse the decision of the Court of Appeals

vacating those convictions and reinstate defendant’s conspiracy convictions arising

from the offense dates of 3 March and 6 March 2008.

The State’s evidence at trial tended to show the following: On 3 March 2008,

officers of the Chatham County Sheriff’s Department observed a controlled drug buy

between undercover informant Daniel Zbytniuk and Christina Marie Smith.

Defendant drove Smith in his mother’s car to the buy location. Smith testified that

she received crack cocaine from defendant, took a small portion of it for herself as

payment for making the handoff, and then gave Zbytniuk the remainder of the

substance in exchange for money. Smith then handed the money to defendant. On

6 March 2008, officers observed another buy arranged between Zbytniuk and Smith.

Similar to the 3 March 2008 buy, defendant drove Smith in his mother’s car, Smith

gave a substance she testified to be crack cocaine to Zbytniuk in exchange for

money, and Smith handed the money to defendant. On 21 March 2008, a third buy

was arranged between Zbytniuk and Smith, this time for a larger amount and at a

motel so that Zbytniuk could learn how to process crack cocaine. Officers set up

surveillance in another room across the parking lot. Defendant dropped Smith off

at the motel and left to get Zbytniuk’s cocaine. Defendant later returned to the

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Opinion of the Court

motel with cocaine, which he gave to Zbytniuk in exchange for money. Defendant

also brought baking soda and a cigar in a glass tube, which Smith used to show

Zbytniuk how to cook powder cocaine into crack cocaine. Defendant left to try to

find more cocaine, but was unable to do so. Smith then left in defendant’s mother’s

car to purchase cocaine, but the car broke down and she had to call Zbytniuk and

defendant to come pick her up. Officers arrested defendant as the pair were on

their way to pick up Smith.

On 6 October 2008, defendant was indicted in Chatham County for: (1)

conspiracy to sell or deliver cocaine and maintaining a place for the keeping of

controlled substances on 3 March 2008; (2) conspiracy to sell or deliver cocaine,

maintaining a place for the keeping of controlled substances, and sale or delivery of

cocaine on 6 March 2008; and (3) manufacturing cocaine, possession with intent to

manufacture, sell, or deliver cocaine, sale or delivery of cocaine, maintaining a place

for the keeping of controlled substances, and possession of drug paraphernalia on 21

March 2008. The State dismissed the charges of maintaining a place for the

keeping of controlled substances on 3 March and 6 March 2008 and the charge of

possession of drug paraphernalia on 21 March 2008.

At trial the State introduced Special Agent Kathleen Schell of the State

Bureau of Investigation as an expert in forensic chemistry. Agent Schell testified

about the identity, composition, and weight of the substances recovered on each of

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Opinion of the Court

the three buy dates. She personally had tested the sample from 21 March 2008.

However, Agents Tom Shoopman and Irvin Allcox had performed the testing on the

samples from 3 March and 6 March 2008. Defense counsel objected on Sixth

Amendment grounds, arguing that Agent Schell’s testimony and admission of the

relevant lab reports violated defendant’s right to confront the witnesses against

him. The trial court overruled defense counsel’s objection.

Defendant was convicted of multiple counts and sentenced to consecutive

terms of: (1) thirteen to sixteen months for the consolidated offenses of two counts

of conspiracy to sell or deliver cocaine on 3 March and 6 March 2008 and one count

of sale or delivery of cocaine on 6 March 2008; and (2) sixteen to twenty months for

the consolidated offenses of sale or delivery of cocaine, manufacturing cocaine,

possession with intent to manufacture, sell or deliver cocaine, and maintaining a

place for the keeping of controlled substances, all on 21 March 2008. Defendant

appealed to the Court of Appeals, which vacated the convictions for two counts of

conspiracy to sell or deliver cocaine on 3 March and 6 March 2008 and one count of

sale or delivery of cocaine on 6 March 2008. State v. Craven, 205 N.C. App. 393,

405, 696 S.E.2d 750, 757 (2010). The Court of Appeals found no error in the

convictions stemming from the events on 21 March 2008. Id. The State filed a

Petition for Discretionary Review with this Court, seeking review of the decision

vacating the 3 March and 6 March 2008 convictions.

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 STATE V. CRAVEN

Opinion of the Court

In State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11), we

summarized the Supreme Court of the United States’ Confrontation Clause

jurisprudence in deciding whether a defendant’s Confrontation Clause rights were

violated when an expert witness gave her opinion that a substance was cocaine,

based upon testing performed by a non-testifying chemical analyst. There we held

that “admission of an expert’s independent opinion based on otherwise inadmissible

facts or data ‘of a type reasonably relied upon by experts in the particular field’ does

not violate the Confrontation Clause so long as the defendant has the opportunity to

cross-examine the expert.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___, slip op. at

13 (June 26, 2013) (quoting N.C.G.S. § 8C-1, Rule 703 (2011)). “We emphasize[d]

that the expert must present an independent opinion obtained through his or her

own analysis and not merely ‘surrogate testimony’ parroting otherwise inadmissible

statements.” Id., slip op. at 13 (quoting Bullcoming, ___ U.S. at ___, 131 S. Ct. at

2710). Accordingly, we must determine whether the testimony objected to here was

an independent opinion obtained through Agent Schell’s own analysis or was merely

surrogate testimony repeating testimonial out-of-court statements.1 See id., slip op.

at 15 (discussing preservation of error).

1 Consistent with the approach adopted by the majority in Ortiz-Zape, we decline to
adopt the concurrence’s four-part test for determining whether there is a Confrontation
Clause violation.

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Opinion of the Court

Here, defense counsel objected to portions of Agent Schell’s testimony about

the substances recovered from the 3 March and 6 March 2008 buys. Regarding the

3 March 2008 sample, the State asked:

Q. Now did you also bring with you notes and
documentation for the date of offense March 3, 2008?

A. I did.

Q. And who—who completed that analysis?

A. Mr. Tom Shoopman completed that analysis.

....

Q. And did you bring his report?

A. I did.

Q. Did you have a chance to review it?

A. I have.

Q. Do you agree with its conclusions?

A. I do.

....

Q. What was Mr. Shoopman’s conclusion?

[Objection by defense counsel]

....

A. According to the lab report prepared by Tom
Shoopman, the results for State’s Exhibit Number . . . .
10 were cocaine base schedule two controlled substance
with a weight of 1.4 grams.

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Opinion of the Court

The lab report then was admitted into evidence.

Similarly, regarding the 6 March 2008 sample, the State asked:

Q. Now turning to State’s Exhibit Number 12 and
offense date March 6th of 2008, did you bring a report
from the SBI regarding that date of offense?

A. I did.

Q. Who conducted that analysis?

A. Mr. Irvin Allcox.

Q. And do you have that report in your hand?

A. I do.

Q. And do you have the underlying data supporting
that conclusion?

A. I do.

Q. And you do agree with the conclusion stated in that
report?

A. I do.

....

Q. And what conclusion did [Mr. Allcox] reach?

[Objection by defense counsel]

A. The item . . . . twelve was cocaine base, schedule
two controlled substance. And it had a weight of 2.5
grams.

That lab report also was admitted into evidence.

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Opinion of the Court

It is clear from this testimony that Agent Schell did not offer—or even

purport to offer—her own independent analysis or opinion on the 3 March and 6

March 2008 samples. Instead, Agent Schell merely parroted Agent Shoopman’s and

Agent Allcox’s conclusions from their lab reports. Like the lab report in Bullcoming,

these lab reports contained “[a]n analyst’s certification prepared in connection with

a criminal investigation or prosecution.” Bullcoming, ___ U.S. at ___, 131 S. Ct. at

2713-14. Specifically, Agent Shoopman’s and Agent Allcox’s certifications stated:

“This report represents a true and accurate result of my analysis on the item(s)

described.” There is no doubt that the lab reports were “document[s] created solely

for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, [and] rank[ ]

as testimonial.” Id. at ___, 131 S. Ct. at 2717 (quoting and citing Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 2532 (2009)). Thus, the

statements introduced by Agent Schell constituted testimonial hearsay, triggering

the protections of the Confrontation Clause. “Absent a showing that [Agents

Shoopman and Allcox] were unavailable to testify at trial and that [defendant] had

a prior opportunity to cross-examine them, [defendant] was entitled to ‘ “be

confronted with” ’ the [agents] at trial.” Melendez-Diaz, 557 U.S. at 311, 129 S. Ct.

at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54, 124 S. Ct. 1354, 1365

(2004)); see also Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2710. Here the State did

not show that Agents Shoopman and Allcox were unavailable and that defendant

had a prior opportunity to cross-examine them. Accordingly, admission of Agent

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Opinion of the Court

Shoopman’s and Agent Allcox’s testimonial conclusions through Agent Schell’s

surrogate testimony violated defendant’s Sixth Amendment right to confrontation.

See Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2710.

Having determined that admission of the out-of-court testimonial statements

from the 3 March and 6 March 2008 lab reports was error, we now must determine

whether that error was harmless beyond a reasonable doubt. See N.C.G.S. § 15A-

1443(b) (2011).

With regard to the convictions for conspiracy to sell or deliver cocaine on 3

March and 6 March 2008, we reverse the decision of the Court of Appeals vacating

those convictions. “A criminal conspiracy is an agreement between two or more

people to do an unlawful act.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833,

835 (1991). It is not necessary for the unlawful act to be completed. Id. “As soon as

the union of wills for the unlawful purpose is perfected, the offense of conspiracy is

completed.” Id. Agent Schell’s testimony regarding the substances obtained on 3

March and 6 March 2008 was not necessary for the State to prove beyond a

reasonable doubt that defendant conspired to sell or deliver cocaine. Therefore, the

erroneous admission of such testimony was harmless as to defendant’s convictions

for conspiracy to sell or deliver cocaine on 3 March and 6 March 2008. Accordingly,

we instruct the Court of Appeals to reinstate these convictions.

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 STATE V. CRAVEN

Opinion of the Court

With regard to the remaining conviction for sale or delivery of cocaine on 6

March 2008, the six participating members of the Court are equally divided on

whether the error was harmless beyond a reasonable doubt. Consequently, the

decision of the Court of Appeals, which held the error was reversible, remains

undisturbed and stands without precedential value. See, e.g., Goldston v. State, 364

N.C. 416, 700 S.E.2d 223 (2010) (per curiam).

Nevertheless, the remedy ordered by the Court of Appeals was erroneous as a

matter of law. Instead of vacating defendant’s conviction for sale or delivery of

cocaine, the Court of Appeals should have ordered a new trial. See, e.g., State v.

Littlejohn, 264 N.C. 571, 574, 142 S.E.2d 132, 134-35 (1965) (concluding that the

defendants were entitled to a new trial, not dismissal of the charges against them,

because the trial court, in denying their motion for nonsuit, acted upon incompetent

evidence). Therefore, we reverse the Court of Appeals’ opinion with respect to the

remedy and order a new trial on the sale or delivery conviction dated 6 March 2008.

The decision of the Court of Appeals regarding defendant’s remaining convictions

remains undisturbed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Justice BEASLEY did not participate in the consideration or decision of this case.

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HUDSON, J., concurring

Justice HUDSON concurring in the result.

Though the majority here reaches the correct result, it does so by relying on

State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11), and by utilizing

an approach which in my view is unnecessarily broad and confusing. I conclude

that in this slice of cases—in which certified lab reports prepared for this

prosecution are entered into evidence through a surrogate witness who was not

involved in the testing—the approach can be quite simple. As such, I write

separately to set out that approach as dictated by the United States Supreme Court

in Melendez-Diaz and Bullcoming. Therefore, I respectfully concur in the result.

Because I have summarized the development of the Supreme Court’s recent

Sixth Amendment Confrontation Clause jurisprudence in the dissenting opinion in

Ortiz-Zape, I will not do so again here. See Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d

at ___ (Hudson, J., dissenting). But because the majority’s opinion does not offer

the necessary discussion of the confrontation issues in this case but instead turns on

whether the testimony fits under the umbrella of “independent opinion” the

majority has constructed in Ortiz-Zape, I cannot agree with its reasoning here. I

will endeavor to fill in the missing pieces of the analysis and offer a methodical

approach that is simple to apply to future cases within this easily definable

category.

Though the majority does not clearly explain this, two separate Confrontation

Clause violations arise here: first, the admission of the lab reports without

accompanying testimony by the analyst who prepared them; and second, admission
 STATE V. CRAVEN

HUDSON, J., concurring

of Agent Schell’s testimony based entirely on her review of the lab reports. While

the two are closely connected in this case, they require separate analyses for future

cases that may involve one or the other.

First, we examine the admission of the lab reports themselves for

constitutional error. “As a rule, if an out-of-court statement is testimonial in

nature, it may not be introduced against the accused at trial unless the witness who

made the statement is unavailable and the accused has had a prior opportunity to

confront that witness.” Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct.

2705, 2713 (2011). There is no question that the lab reports are out-of-court

statements and that the witnesses (Tom Shoopman and Irvin Allcox) who made

those statements did not testify. In addition, the State made no showing that those

witnesses were unavailable or that defendant had a prior opportunity to cross-

examine them. The only question remaining from the Bullcoming rule quoted

above, then, is whether the lab reports are “testimonial in nature.” Id. at ___, 131

S. Ct. at 2713. Applying the analysis from Melendez-Diaz and Bullcoming, I

conclude that the reports are undoubtedly testimonial and were prepared solely for

the prosecution of this defendant.2 As such, the testing analysts are witnesses

2 Although Williams v. Illinois does not control here because it involved a report not
prepared for that particular prosecution, the four-member plurality’s opinion noted what
distinguished that case from Bullcoming and Melendez-Diaz: “In those cases, the forensic
reports were introduced into evidence, and there is no question that this was done for the
purpose of proving the truth of what they asserted: in Bullcoming that the defendant's
blood alcohol level exceeded the legal limit and in Melendez–Diaz that the substance in
question contained cocaine. Nothing comparable happened here.” Williams v. Illinois, ___

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HUDSON, J., concurring

against defendant whom he is entitled to confront under the Sixth Amendment.

In Melendez-Diaz v. Massachusetts the Supreme Court opined that

“certificates” of lab analysts were affidavits and therefore, testimonial. 557 U.S.

305, 310, 129 S. Ct. 2527, 2532 (2009). Further, the Court found that the

certificates were “incontrovertibly a solemn declaration or affirmation made for the

purpose of establishing or proving some fact.” Id. (citations and internal quotation

marks omitted). In Bullcoming the Supreme Court refused to distinguish between

the “sworn” certificates in Melendez-Diaz and the “unsworn” lab reports in that

case. Instead, the Court noted that “[i]n all material respects, the laboratory report

in this case resembles those in Melendez–Diaz.” Bullcoming, ___ U.S. at ___, 131 S.

Ct. at 2717. The Court went on to conclude that the lab reports were testimonial,

stating that “[a] document created solely for an ‘evidentiary purpose,’ . . . made in

aid of a police investigation, ranks as testimonial.” Id. at ___, 131 S. Ct. at 2717

(citing Melendez-Diaz, 557 U.S. at 310-11, 129 S. Ct. at 2532). The same analysis

applies here: the lab reports were created solely for the evidentiary purpose of

establishing or proving that the substances in question were in fact cocaine in the

State’s case against this defendant. The forms at issue state near the bottom, in all

capitals, that “THIS REPORT IS TO BE USED ONLY IN CONNECTION WITH

AN OFFICIAL CRIMINAL INVESTIGATION.” Directly under that statement is

the printed attestation that: “This report represents a true and accurate result of

U.S. ___, ___, 132 S. Ct. 2221, 2240 (2012) (plurality).

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HUDSON, J., concurring

my analysis on the item(s) described,” followed by a signature. State’s Exhibit 29,

the analysis of State’s Exhibit 10 (from the 3 March 2008 buy) is signed by “T.E.

Shoopman”; State’s Exhibit 30, the analysis of State’s Exhibit 12 (from the 6 March

2008 buy) is signed by “Irvin Lee Allcox.”

There can be no question that these lab reports are testimonial in nature.

Because both reports were offered and received into evidence through Agent Schell’s

testimony without any limitation on purpose, over defendant’s objection based on

the Confrontation Clause, their admission into evidence without testimony from the

testing analysts was a clear violation of the Confrontation Clause under

Bullcoming.3 This error allowed admission of the essential evidence of a central

element of the charge of sale or delivery of cocaine, namely, that the substance was

cocaine. As such, the error cannot be considered harmless beyond a reasonable

doubt unless there was other, independent evidence to establish the same crucial

fact.

Second, then, we must examine Agent Schell’s testimony regarding her

review of the lab reports. The decision in Bullcoming leaves room for an expert who

did not conduct the testing in question to offer an “independent opinion” on the fact

at issue. See ___ U.S. at ___, 131 S. Ct. at 2716 (noting that the State did not

3 State law provides that the State may properly introduce the report without the
testimony of the original testing analyst if the State gives written notice to the defendant
that it intends to do so and the defendant does not object in a timely fashion. N.C.G.S. § 90-
95(g) (2012). The Supreme Court has endorsed such statutory waiver of confrontation
rights in this context. See Melendez-Diaz, 557 U.S. at 326-27, 129 S. Ct. at 2540-41. The
State did not make use of subsection 90-95(g) here.

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HUDSON, J., concurring

“assert that [the substitute expert] had any ‘independent opinion’ concerning

Bullcoming’s [blood alcohol content]”). Justice Sotomayor emphasized that very

point in her concurrence. Id. at ___, 131 S. Ct. 2722 (Sotomayor, J., concurring)

(stating that “this is not a case in which an expert witness was asked for his

independent opinion about underlying testimonial reports that were not themselves

admitted into evidence”). Despite the erroneous admission of the lab reports here,

the State’s case could perhaps have been salvaged if Agent Schell had presented

such an independent expert opinion regarding the identity of the chemical

substance. She did not.

When considering whether admission of an expert witness’s opinion based on

underlying lab reports is constitutionally permissible, I apply a methodical

approach. This analysis is discussed at length in the dissenting opinion in Ortiz-

Zape, ___ N.C. at ___, ___ S.E.2d at ___ (Hudson, J., dissenting), so I will abbreviate

it here. First, we consider whether the underlying lab reports are testimonial—if

they are not, there is no Confrontation Clause violation. Second, we examine the

identity of the witness testifying based on the reports—if the original testing

analyst does not appear as a witness, and the State does not show that she was

unavailable and that defendant had a prior opportunity to cross-examine her,

neither the report itself nor the report’s conclusions can be admitted as evidence.

Third, we consider whether the testifying analyst has offered an independent

opinion based on something other than her review of the reports. When the State

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HUDSON, J., concurring

offers an expert witness ostensibly testifying to an independent opinion based on

review of inadmissible testimonial lab reports, we must carefully examine the

testimony of the expert to determine whether she offers a truly independent expert

opinion or merely acts as the surrogate analyst forbidden by Bullcoming.

The majority held in Ortiz-Zape that “admission of an expert’s independent

opinion based on otherwise inadmissible facts or data ‘of a type reasonably relied

upon by experts in the particular field’ does not violate the Confrontation Clause so

long as the defendant has the opportunity to cross-examine the expert.” Ortiz-Zape,

___ N.C. at ___, ___ S.E.2d at ___ (majority opinion) (quoting N.C.G.S. § 8C-1, Rule

703 (2011)). The majority then “emphasize[d] that the expert must present an

independent opinion obtained through his or her own analysis and not merely

‘surrogate testimony’ parroting otherwise inadmissible statements.” Id. at ___, ___

S.E.2d ___ (citation omitted). The rule from Ortiz-Zape is incomplete at best,

because it takes no account of the purpose for which the report was prepared and

whether it is offered for its truth. See Williams v. Illinois, ___ U.S. ___, ___, ___, 132

S. Ct. 2221, 2235, 2243 (2012) (plurality). And even if the statements from Ortiz-

Zape appear reasonable, in reality the majority has created a rule under which the

State can circumvent the Confrontation Clause simply by asking the testifying

analyst the question: “What is your independent expert opinion?” See Ortiz-Zape,

___ N.C. at ___, ___ S.E.2d at ___ (finding no confrontation problem when expert

witness reported no independent analysis or knowledge beyond that presented in

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HUDSON, J., concurring

the inadmissible report, but was asked: “What is your independent expert

opinion?”); State v. Brewington, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2013)

(235PA10) (finding no confrontation problem when expert witness testified that

“[b]ased upon all the data that [Agent Gregory] obtained from the analysis of that

particular item . . . I would have come to the same conclusion that she did”). The

majority’s rule, as applied in Ortiz-Zape and Brewington, does not actually require

any independent analysis or work on the expert’s part. The expert may simply

review the nontestifying analyst’s report and adopt its conclusions as her own. That

rule is flatly inconsistent with United States Supreme Court precedent on this

issue. I would instead insist that the expert have actually done independent

analysis—either by doing his or her own analysis of raw data obtained by the

nontestifying analyst or (preferably) retesting the substance and reporting his or

her own results. Otherwise, the Sixth Amendment gives defendant the right to

confront the testing analyst by cross-examination.

The final step in the analysis is to determine whether any preserved

constitutional error is harmless beyond a reasonable doubt. The State bears the

burden of making this showing, which generally requires that “overwhelming”

evidence of guilt remain after removal of the constitutionally problematic evidence.

See State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988).

I now apply that analytical framework here. As discussed above, there is no

question that the lab reports were created solely to be used as evidence in this

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HUDSON, J., concurring

prosecution and are therefore testimonial. Further, the original testifying analysts

did not testify and the State made no effort to show that they were unavailable or

subject to prior cross-examination. Because Agent Schell testified based on Agent

Shoopman’s and Agent Allcox’s analyses and reports, we examine whether she has

offered a truly independent opinion or has merely agreed with the nontestifying

analysts’ conclusions, which are testimonial opinions on a key element of the case

against defendant. The latter violates the Confrontation Clause. See Bullcoming,

___ U.S. at ___, 131 S. Ct. at 2716.

The testimony quoted by the majority speaks for itself: Agent Schell testified

specifically to the conclusions of two nontestifying analysts and offered no

independent analysis or opinion at all. The only opinion she was asked to give was:

“Do you agree with the conclusion stated in that report?” There is nothing

independent about agreeing with a conclusion in an inadmissible report. This

testimony is functionally indistinguishable from the testimony prohibited in

Bullcoming, in that it deprives defendant of any meaningful cross-examination

regarding either agent’s testing procedures. Because Agent Schell did not observe

the testing by Agent Shoopman or Agent Allcox, like the surrogate analyst in

Bullcoming, she could not be cross-examined about “what [either analyst] knew or

observed about the events [their reports] concerned, i.e., the particular test and

testing process [they] employed.” Id. at ___, 131 S. Ct. at 2715. “Nor could such

surrogate testimony expose any lapses or lies on [either Agent Shoopman’s or Agent

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HUDSON, J., concurring

Allcox’s] part.” Id. at ___, 131 S. Ct. at 2715. Agent Schell’s status as an expert

witness does not allow the State to bypass the Confrontation Clause by simply

asking her to read the conclusions of nontestifying witnesses into evidence. Nor has

she provided any independent expert opinion—developed through her own

analysis—for which the lab reports were a basis. Agent Schell’s testimony

regarding the nontestifying analysts’ conclusions about the substances involved in

the 3 March and 6 March 2008 transactions violates defendant’s Confrontation

Clause rights.

Having determined that the lab reports are testimonial; that Agent Schell did

not personally conduct or participate in the testing on the 3 March and 6 March

2008 samples, and the State did not show that the testing analysts were

unavailable and that defendant had a prior opportunity to cross-examine; and that

Agent Schell offered no independent opinion based on the lab reports, I agree with

the majority’s ultimate holding that Agent Schell’s testimony violates the

Confrontation Clause and admission of her opinions was prejudicial error as to the

sale or delivery conviction. I therefore concur in the result.

Chief Justice PARKER joins in this concurring opinion.

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