Opinion
No. COA11–916.
2012-05-15
STATE of North Carolina v. Kenneth McCORKLE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Heather H. Freeman, for the State. Sue Genrich Berry for defendant-appellant.
Appeal by defendant from judgment entered 17 December 2010 by Judge Eric L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 30 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Heather H. Freeman, for the State. Sue Genrich Berry for defendant-appellant.
GEER, Judge.
Defendant Kenneth McCorkle appeals from his convictions for felony possession of cocaine, possession of drug paraphernalia, and being a habitual felon. Defendant's sole contention on appeal is that the trial court violated his rights under the Confrontation Clause by admitting a laboratory report identifying the material seized from defendant's car as cocaine without the testimony of the laboratory analyst. Because we hold that the State adequately complied with N.C. Gen.Stat. § 90–95(g) (2011), we find no error.
Facts
The State's evidence at trial tended to show the following. On 19 August 2009, Officers A.Z. Saine and Sean Michael Blee from the Charlotte–Mecklenburg Police Department found defendant asleep on the driver's side of a vehicle that was parked but running. Officers Saine and Blee approached the vehicle, tapped on the window, and asked defendant to step out of the vehicle and provide identification. As defendant stepped out of the vehicle, the officers observed defendant place a stack of credit cards on the dash of his car.
Officers Saine and Blee asked defendant for consent to search his person. Defendant consented, and during the subsequent search the officers located a glass crack pipe. The officers then searched defendant's vehicle and Officer Blee uncovered a rock of crack cocaine underneath the stack of credit cards that was placed upon the dash.
Defendant was indicted for possession of cocaine, possession of drug paraphernalia, and being a habitual felon. On 31 March 2010, the State gave “NOTICE that, pursuant to N.C. Gen.Stat. § 15A–975, the State of North Carolina intends to use the following evidence, ... the report of the analysis of any evidence seized prepared by the N.C. S.B.I. Lab or the Charlotte Mecklenburg Police Department Crime Lab on the form approved by the North Carolina Attorney General; ....“ The lab result form on which the analysis is reported specifically notes “[t]he form for this report is found to be in compliance with NCGS 90–95(g) and is hereby approved by the Attorney General.”
Defendant was tried beginning on 16 December 2010. At trial, the State offered the laboratory report from the Charlotte–Mecklenburg Police Department Crime Laboratory into evidence “pursuant to 90–95(g).” Defendant objected on the basis that it would be “a violation of the confrontation clause to admit a lab report without the lab tech who performed the analysis.” Defendant's contention was that “the State does give you a form sheet with a box checked with their intention of submitting evidence seized by the SBI lab or the Mecklenburg County crime lab, they do that, but it doesn't say specifically that that's going to be submitted without a lab tech.” Defendant's objection was overruled, and the laboratory report was admitted into evidence.
The jury found defendant guilty of possession of cocaine, possession of drug paraphernalia, and of being a habitual felon. Defendant was sentenced to a mitigated-range term of 101 to 131 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant's sole contention on appeal is that the trial court violated his rights under the Confrontation Clause by admitting a laboratory report identifying the material seized from defendant's car as cocaine without the testimony of the laboratory analyst. The State asserts that it followed the procedures set forth in N.C. Gen.Stat. § 90–95(g) and that defendant waived his right to confront the analyst by failing to file a timely written objection with the trial court.
The United States Supreme Court has held that “[t]he right to confrontation may ... be waived ... by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, –––– n. 3, 174 L.Ed.2d 314, 323 n. 3, 129 S.Ct. 2527, 2534 n. 3 (2009). The Supreme Court explained that in their “simplest form,” these procedural rules, referred to as “notice-and-demand statutes,”
require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial.
Id. at ––––, 174 L.Ed.2d at 331, 129 S.Ct. at 2541. The Supreme Court further noted that “[i]t suffices to say that what we have referred to as the ‘simplest form [of] notice-and-demand statutes,’ ... is constitutional [.]” Id. at –––– n. 12, 174 L.Ed.2d at 331 n. 12, 129 S.Ct. at 2541 n. 12.
North Carolina's relevant notice-and-demand statute provides, in pertinent part:
(g) Whenever matter is submitted to the North Carolina State Crime Laboratory, the Charlotte, North Carolina, Police Department Laboratory or to the Toxicology Laboratory, Reynolds Health Center, Winston–Salem for chemical analysis to determine if the matter is or contains a controlled substance, the report of that analysis certified to upon a form approved by the Attorney General by the person performing the analysis shall be admissible without further authentication and without the testimony of the analyst ... as evidence of the identity, nature, and quantity of the matter analyzed. Provided, however, the provisions of this subsection may be utilized by the State only if:
(1) The State notifies 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 under this subsection and provides a copy of the report to the defendant, and
(2) The defendant fails to file a written objection with the court, with a copy to the State, at least five business days before the proceeding that the defendant objects to the introduction of the report into evidence.
N.C. Gen.Stat. § 90–95(g).
This Court in State v. Steele, 201 N.C.App. 689, 696, 689 S.E.2d 155, 161 (2010), held that the notice and demand statute in N .C. Gen.Stat. § 90–95(g) for chemical analyses in drug cases is a “simple” notice-and-demand statute that is constitutional. Therefore, as long as the procedure in N.C. Gen.Stat. § 90–95(g) was followed, defendant's Confrontation Clause claim is without merit. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court.”).
In terms of notice, the statute requires the State to notify defendant at least 15 business days before trial and to provide a copy of the report to defendant. Here, the State notified defendant on 31 March 2010, and trial commenced on 16 December 2010. Defendant concedes notice of intent to use the report was provided more than 15 days before trial. Additionally, defendant does not claim that the report was not provided. Defendant only claims that the notice of intent did not specifically reference the applicable statute.
However, the report provided to defendant does, in fact, reference N.C. Gen.Stat. § 90–95(g). The State's notice also tracked the pertinent language of the statute. While the better practice would be for the State to specifically reference N.C. Gen.Stat. § 90–95(g) in its notice of intent to introduce a laboratory report into evidence under this statutory exception to the requirements of Crawford v. Washington, 541 U.S. 36, 158 L.Ed.2d 177, 124 S.Ct. 1354 (2004), the combination of the language of the State's notice tracking the language of N.C. Gen.Stat. § 90–95(g) and the reference to N.C. Gen.Stat. § 90–95(g) on the report to be admitted were sufficient to put defendant on notice that the State planned to introduce the report without the testimony of the analyst who conducted the analysis.
Defendant did not file a written objection with the court at least five business days before trial. Therefore, the procedural requirements for the report to be introduced at trial without the analyst present, pursuant to N.C. Gen.Stat. § 90–95(g), were satisfied. Accordingly, the trial court did not err by admitting the report.
No error. Judges BRYANT and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).