Opinion
No. COA10-945
Filed 17 May 2011 This case not for publication
Appeal by defendant from judgment entered 10 March 2010 by Judge Laura J. Bridges in Buncombe County Superior Court. Heard in the Court of Appeals 23 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State. James N. Freeman, Jr., for defendant-appellant.
Buncombe County No. 08 CRS 53977.
Delton Maynor ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of assault with a deadly weapon inflicting serious injury ("AWDWISI"). We find no error.
On 17 March 2008, defendant approached his acquaintance Kenneth Dale Brown ("Brown") and requested assistance with tearing down a hot tub at defendant's residence ("the residence"). Defendant took Brown back to the residence, where three females were present. The two men began to tear down the hot tub. While they worked, the men also consumed alcohol and smoked marijuana. Defendant, Brown, and the three females all consumed alcohol until approximately 11:00 p.m., when Brown decided to leave.
As Brown attempted to leave the residence, defendant approached him and stabbed him in the chest with a knife. Someone at the residence then called 911 and paramedics were dispatched to the scene. When they arrived, they discovered that Brown had lost approximately one liter of blood. The paramedics were able to stabilize Brown and transport him to Mission Hospital. At the hospital, Brown underwent surgery to repair the damage caused by the stabbing.
On 18 March 2008, Brown's niece, Angela Revis ("Ms. Revis"), confronted defendant about the stabbing. Defendant initially denied knowing Brown. However, when Ms. Revis asked defendant if he had stabbed Brown, defendant replied that Brown "got what he deserved."
Later that day, defendant was stopped by law enforcement for driving with a revoked license, and as a result, defendant's car was impounded. Law enforcement subsequently secured a search warrant for defendant's vehicle. A search uncovered the t-shirt, jeans, and shoes that defendant was wearing at the time Brown was stabbed. The jeans had fluid consistent with blood on them.
Samples of Brown's shirt and defendant's jeans were then sent to the State Bureau of Investigation ("SBI") Crime Lab. The samples tested positive for the presence of blood. After this positive test, the samples were sent for further analysis, which confirmed that the samples contained Brown's DNA.
Defendant was indicted for one count of assault with a deadly weapon with the intent to kill inflicting serious injury. Defendant was also indicted for the aggravating factor that he committed the offense while on pretrial release for another charge. Beginning 8 March 2010, defendant was tried by a jury in Buncombe County Superior Court. During the trial, Erin Ermish ("Ermish"), a forensic scientist with the SBI, testified about the test results which confirmed the presence of blood on Brown's shirt and the jeans recovered from defendant's vehicle. However, Ermish did not personally perform the tests for the presence of blood; her testimony was based upon her peer review of another SBI forensic scientist, Katie Harris ("Harris"). In addition, Sarah Johnson ("Johnson"), a forensic biologist with the SBI, testified about the tests she performed to confirm the presence of Brown's DNA on defendant's jeans.
On 10 March 2010, the jury returned a verdict of guilty to the lesser included offense of AWDWISI. Defendant pled guilty to the aggravating factor of committing the offense while on pretrial release for another charge. Consequently, the trial court sentenced defendant in the aggravated range to a minimum term of 74 months to a maximum term of 98 months in the North Carolina Department of Correction. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred by admitting Ermish's testimony regarding tests performed by Harris, as well as the results of those tests, in violation of his constitutional right to confront Harris. We agree, but find that the error does not rise to the level of plain error.
Initially, we note that defendant did not raise a constitutional objection to Ermish's testimony at trial. "[A]ppellate courts will not ordinarily pass on a constitutional question unless the question was raised in and passed upon by the trial court." State v. Muncy, 79 N.C. App. 356, 364, 339 S.E.2d 466, 471 (1986). However, our Courts have permitted appellate arguments that the admission of certain evidence was in violation of a defendant's Confrontation Clause rights to be reviewed under a plain error analysis, even though no Confrontation Clause argument was raised before the trial court. See, e.g., State v. Lemons, 352 N.C. 87, 96, 530 S.E.2d 542, 547-48 (2000); State v. Hough, ___ N.C. App. ___, ___, 690 S.E.2d 285, 288 (2010). Under plain error review, defendant bears the burden of showing either "(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial." State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
"The Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant." State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009). "[F]orensic analyses qualify as `testimonial' statements, and forensic analysts are `witnesses' to which the Confrontation Clause applies." Id. at 452, 681 S.E.2d at 304-05. This Court has formulated the following test to determine whether testimony by a substitute analyst who merely conducted a "peer review" of the forensic analyses sought to be admitted into evidence violates a defendant's rights under the Confrontation Clause:
(1) determine whether the document at issue is testimonial; (2) if the document is testimonial, ascertain whether the declarant was unavailable at trial and defendant was given a prior opportunity to cross-examine the declarant; (3) if the defendant was not afforded the opportunity to cross-examine the unavailable declarant, decide whether the testifying expert was offering an independent opinion or merely summarizing another non-testifying expert's report or analysis; and (4) if the testifying expert summarized another non-testifying expert's report or analysis, determine whether the admission of the document through another testifying expert is reversible error.
State v. Brewington, ___ N.C. App. ___, ___, 693 S.E.2d 182, 189 (2010). When a substitute analyst's challenged testimony satisfies all four prongs of the Brewington test, the testimony is a prejudicial violation of the Confrontation Clause and entitles a defendant to a new trial.
In the instant case, the tests results which indicated that blood was present on defendant's clothing would be considered testimonial pursuant to our Supreme Court's holding in Locklear. 363 N.C. at 452, 681 S.E.2d at 304-05. In addition, Harris was unavailable at trial, and defendant did not have a previous opportunity to cross-examine her. Thus, the first two prongs of the Brewington test have been satisfied.
We must next determine whether Ermish was "merely summarizing" Harris's report and analysis or whether she was offering an independent opinion. Ermish testified as followed on direct examination:
Q. And when you reviewed Special Agent Harris's notes and findings, were her conclusions and opinions consistent with what you would have found and also what you found by reviewing her notes and data?
A. They appeared to be, yes.
Q. And why do you say that?
A. Since I never actually examined the actual shirt myself, I only reviewed her notes and her documentation, I cannot say for sure exactly what I would have found, but based on her tests and the results, the conclusions appear to be correct.
Ermish then later testified that "[b]ased on my review of Ms. Harris's notes, on the chemical test that she performed and her results of those tests, I would also conclude that the stained T-shirt and the jeans gave chemical indications for the presence of blood." Based upon her testimony and the fact that Ermish neither performed any tests on Brown's shirt or defendant's jeans nor witnessed Harris perform these tests, her testimony must be considered to be merely summarizing Harris's report and analysis. See State v. Williams, ___ N.C. App. ___, ___, 702 S.E.2d 233, 237-38 (2010) (holding that when a testifying analyst "did not conduct any tests on the substance" and was not present when the tests were performed provided "decisive" evidence that "testimony detailing [a] `peer review' was merely a summary of the underlying analysis. . . ."). Thus, the third prong of the Brewington test is satisfied, and the admission of Harris's results through Ermish was in violation of defendant's rights under the Confrontation Clause.
Since Ermish's testimony has satisfied the first three prongs of the Brewington test, we must now determine under the fourth prong of the test whether the erroneous admission of her testimony constituted plain error. Ermish's testimony was limited to Harris' identification of the fluid found on Brown's shirt and defendant's jeans as blood. In light of the other evidence presented by the State, defendant has failed to demonstrate that a different result probably would have been reached but for the error or that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.
Brown specifically testified that it was defendant who stabbed him. Moreover, Brown's DNA was found on defendant's pants, which defendant was wearing at the time of the stabbing. The result of this DNA test was properly introduced through the SBI agent who actually performed the test. Finally, when Brown's niece specifically confronted defendant about whether he had stabbed Brown, defendant told her that Brown "got what he deserved." In light of this evidence, the improper admission of Harris' findings that the fluid on defendant's pants was blood did not rise to the level of plain error. Defendant's argument is overruled. Defendant received a fair trial, free from prejudicial error.
No error.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).