Heard in the Supreme Court on 18 November 2013.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals,
__ N.C.App. __, 728 S.E.2d 385 (2012), vacating two convictions and ordering a new trial for a third conviction, all of which resulted in judgments entered on 7 April 2011 by Judge Quentin T. Sumner in Superior Court, Nash County.
Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney General, for the State-appellant.
George B. Currin, Raleigh, for defendant-appellee.
Before defendant's trial for narcotics offenses, the State notified defendant that, pursuant to North Carolina General Statutes subsection 90-95(g), it intended to introduce a laboratory report of the results of a chemical analysis of the contraband without calling the testing chemist as a witness. At defendant's trial, the report was admitted over defendant's objection. The Court of Appeals reversed defendant's conviction for trafficking in opium by possession, holding that the State failed to establish that defendant waived his constitutional right to confront the witnesses against him because the record did not demonstrate that the State had provided a pretrial copy of the lab report to defendant. We conclude that defendant neither raised nor preserved this issue at trial. Accordingly, we reverse the Court of Appeals on that issue.
Defendant Glenn Edward Whittington (defendant) was involved in a drug sting on 2 July 2008. Joey Sullivan (Sullivan), a cooperating witness, identified defendant to the Nash County Sheriff's Office as his supplier of illicit prescription medicine. In response, Sergeant Phillip Lewis (Lewis), an investigator in the narcotics division of the sheriff's office, set up a controlled transaction. Lewis wired Sullivan for video and sound, then provided him with cash and gave him instructions for the purchase. Sullivan drove to defendant's house, bought " 16 green colored pills" from defendant, and returned to Lewis with the pills.
On 11 May 2009, a three-count indictment was returned charging defendant with trafficking in controlled substances by sale (Count I), delivery (Count II), and possession (Count III) of between four and fourteen grams of opium, in violation of N.C.G.S. § 90-95(h)(4). On 16 November 2009, the State delivered the pills to the State Bureau of Investigation laboratory for chemical analysis. The SBI lab's report, issued on 8 December 2009, identified the " sixteen green circular tablets" as " Oxycodone-Schedule II Opium Derivative" with a weight of " 4.3 grams."
Prior to trial, the State notified defendant that it was invoking North Carolina's notice and demand statute, N.C.G.S. § 90-95(g). The statute allows the State to inform a defendant of its intent to enter into evidence the results of chemical analysis identifying whether submitted " matter is or contains a controlled substance" without testimony from the analyst who performed the test, so long as the notice is timely and the defendant is provided a copy of the report. N.C.G.S. § 90-95(g) (2012). The statute further provides a defendant the opportunity to object in writing before trial to introduction of the report without the analyst's testimony. Id. In a document dated 15 February 2010 titled " Notice of Intention to Introduce Evidence at Trial" that was served on defendant and filed with the clerk of court, the State advised defendant that it intended to introduce as evidence pursuant to N.C.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." The record does not indicate that, before trial, defendant either requested a copy of the report or raised any objection.
Defendant's trial began on 6 April 2011. The State called Jason Bryant (Bryant), an investigator with the Nash County Sheriff's Office, who testified that he delivered the pills to the SBI lab for chemical analysis, then later retrieved the pills from that lab, along with " a lab sheet of their analysis." When the prosecutor asked Bryant " what the lab report states," defendant objected, citing two grounds. The first grounds challenged the sufficiency of the foundation laid by the State as to the chain of custody. The trial court sustained this portion of the objection and that issue is not before us. Defendant then characterized the second part of his objection as constitutional:
[DEFENSE COUNSEL]: ... [T]he second part of my foundation is a constitutional basis, Your Honor. That this officer
is not allowed— not a physician, he's not allowed to testify about the examination of a substance that was done by another officer who has not been on the witness stand, who has not testified and cannot testify about the results of any examination that another person did based upon purely and simply from reading of the report into evidence.
In response to defendant's constitutional objection, the prosecutor informed the court that the State had notified defendant of its intent to introduce the results of the analysis through the lab report. The court expressed its understanding that, once given such notice, defendant had the burden of raising a Confrontation Clause objection in sufficient time to allow the State to subpoena the analyst for trial:
[THE STATE]: ... As far as Investigator Bryant reading the reports of the lab, the State did file a notice of our intent to use the lab [report] to introduce those results. Investigator Bryant is not asked to— to analyze the pills, we're only asking him to read what the State is proposing to admit into evidence.
THE COURT: I believe once you gave [defendant] notice of what you're intending to do [it] is incumbent upon him at that time ...