State v. Whittington

Justice HUDSON

dissenting.

Because in my view the majority here improperly shifts the burden of proving compliance with N.C.G.S. § 90-95(g) from the State to defendant, I respectfully dissent.

It is true that under Melendez-Diaz v. Massachusetts and other Confrontation Clause precedent, “[t]he defendant always has the burden of raising his Confrontation Clause objection.” 557 U.S. 305, 327, 129 S. Ct. 2527, 2541 (2009). In the context of a trial on drug offenses, this means that if the State attempts to introduce a lab report without calling the testing analyst to the stand, the defendant must object on constitutional Confrontation Clause grounds to protect his right to confront witnesses against him. Here the practical result of the majority opinion is that a defendant who wishes to challenge the State’s compliance with our notice and demand statute must also object specifically on those grounds. This is not necessary under the cases as I read them. When a defendant raises a Confrontation Clause objection — whether because the State is attempting to have a lay witness read the lab report into evidence or that the State has called to the stand a substitute analyst who has no truly independent opinion to offer — he has met his constitutional burden. The burden is then on the State to prove waiver, as subsection 90-95(g) can provide. To prove waiver the State must show that it (1) “notifiefd] the defendant at least 15 business days before the proceeding at which the report would be used of its intention to introduce the report into evidence” and (2) “provide[d] a copy of the report to the defendant.” N.C.G.S. § 90-95(g)(l) (2013). This statute appears to require the State’s showing to include documentation, not mere assertions. Therefore, when the State plans on introducing a lab report into evidence without the testimony of the testing analyst and the State believes it has complied with the requirements of subsection 90-95(g), the State should be prepared to submit that documentation at trial to prove compliance in case of an objection by the defendant. If the defendant further challenges that proof (arguing, for example, that he did not receive either or both of the documents), then the trial court is properly situated to review the evidence and rule on the matter. Once the State has shown compliance with the requirements placed on it under subdivision 90-95(g)(1), the burden shifts to the defendant to prove that he “file[d] a written objection with the court, with a copy to the State, at least five business days before the proceeding.” Id. § 90-95(g)(2) (2013). However, *195the statute appears to shift that burden to a defendant only if the State has proved its compliance, and accordingly, without the State’s showing of compliance with the statutory requirements, the defendant need not object.

The State argued, and the majority has agreed, that without a specific objection on subsection 90-95(g) grounds, the State would not be aware that it might later be required to prove its compliance with the statute; this argument serves as the basis for the majority’s claim that defendant is attempting to “swap horses between courts in order to get a better mount.” Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). In my opinion, this argument fails because an objection on Confrontation Clause grounds necessarily includes failure to comply with N.C.G.S. § 90-95(g). If at trial a defendant objects on any Confrontation Clause basis, the easiest response a prosecutor can make is to show waiver — because if a defendant has waived his right to object, he has already lost on that issue. In that sense, the constitutional Confrontation Clause right is inextricably bound with the notice and demand statute allowing waiver: the constitutional objection can be countered by showing waiver, and conversely, any procedural objection to compliance with the statute could undermine the State’s claim that a defendant waived his constitutional Confrontation Clause rights. Moreover, here it is clear that the prosecutor was well aware that the State’s compliance with subsection 90-95(g) would be at issue on appeal, despite no specific objection from defendant on those grounds. This conclusion is evidenced by the colloquy in which the State moved the Notice into evidence: “[The State]: ... I anticipate by the way things are going that there could be a possible appeal and I just want the record on appeal to reflect that [the Notice] was part of the record.” Any such Confrontation Clause objection should instantly alert the State that its compliance with the notice and demand statute is being challenged, and the State then has the burden of proving that it complied with the statutory requirements.

The majority also highlights defense counsel’s alleged contention that subsection 90-95(g) is no longer good law in light of Melendez-Diaz and his failure to challenge the State’s assertion that it complied with the statutory requirements. I agree with the majority that “Melendez-Diaz had no impact on the continuing vitality of subsection 90-95(g).” Ultimately, though, while the transcript here does appear to show some confusion on the issues, it does not matter what defense counsel said or did not say. Defendant met his initial burden by objecting to admission of the lab report in violation of his

*196Confrontation Clause rights. The burden then shifted to the State to prove compliance with our notice and demand statute, which it failed to do. Any further commentary from defense counsel was unnecessary. Best practices would dictate that a defendant alert the trial court if the State fails to meet its burden, but such an objection is not required. Protection of constitutional Confrontation Clause rights requires a defendant to object initially. I conclude that here, Defendant met his burden; the State did not meet its own burden to show waiver.

Here, while the State submitted documentary evidence to show compliance with the notice requirement, the State did not submit any evidence to show that it actually sent a copy of the lab report to defendant.1 The State’s bald assertion that “[c]opy of the report was delivered to [defense counsel]” is insufficient. Therefore, I conclude that the State failed to meet its burden under subsection 90-95(g) to prove that defendant waived his constitutional Confrontation Clause rights and the trial court erred in overruling his objection to admission of the lab report into evidence. Defendant did not need to further object or challenge any evidence presented by the State because the State failed to meet its initial burden.

For the reasons stated above, I respectfully dissent.

Justice BEASLEY joins in this dissenting opinion.

. As noted by the majority, while the State’s “Notice of Intention to Introduce Evidence at Trial” form is sufficient to give notice, the form is also troubling in some aspects in that it may be inconsistent with the statute. Specifically, the form states that “[a] copy of report(s) will be delivered upon request.” As is made clear by N.C.G.S. § 90-95(g)(l), the State must provide a copy of the lab report, regardless of whether it is requested.