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  "name": "STATE OF NORTH CAROLINA v. JORGE ALBERTO GALINDO, Defendant",
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    "judges": [
      "Chief Judge MARTIN and Judge BRYANT concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JORGE ALBERTO GALINDO, Defendant"
    ],
    "opinions": [
      {
        "text": "HUNTER, Robert C., Judge.\nDefendant Jorge Alberto Galindo appeals his convictions for trafficking in cocaine by possession and felonious possession of marijuana. In his sole argument on appeal, defendant contends that admitted expert testimony regarding the weight of the cocaine found at his residence was impermissible hearsay and violated his right to confrontation as the testifying expert did not personally perform the analysis and generate the lab report. Although the admission of the expert\u2019s testimony violated defendant\u2019s Sixth Amendment right to confrontation, we conclude that the error was harmless beyond a reasonable doubt. We, therefore, uphold defendant\u2019s convictions.\nFacts\nThe State\u2019s evidence tended to establish the following facts at trial. Based on an informant\u2019s tip that drugs were being sold out of a residence on West Ridge Road in Charlotte, North Carolina, Officer Steve Selogy with the Charlotte-Mecklenburg Police Department obtained and, along with other officers, executed a search warrant of the residence on 21 August 2007. Selogy and another officer went around the back of the house and saw a van in the driveway, with a man in the driver\u2019s seat and defendant standing roughly six feet away. When the officers approached the van, they saw a \u201cclear baggie of a white powdery substance\u201d in the cup holder of the center console. The substance was seized and the two men were handcuffed, frisked for weapons, and then taken inside the residence.\nOnce inside, Selogy asked the occupants who was in charge of the house. Defendant stated that it was his house. Selogy took defendant into his bedroom and read defendant his Miranda rights. He explained to defendant that the house was titled in his father\u2019s name and asked whether his father was involved. Defendant responded that anything the police found in the house belonged to him; his father knew nothing about what was going on in the house. Selogy then asked defendant if there was any cocaine, marijuana, or weapons in the house. Defendant responded by pointing to the closet in his bedroom, where the police found a shoe box containing \u201cone kilogram of powder cocaine\u201d that had been \u201cwrapped really tightly \u2022with cellophane.\u201d The cocaine had a handgun on top of it and another one underneath it.\nSelogy asked if there was anything else in the house and defendant told him that there was marijuana in plastic bags in the closet to the right of the shoe box and that there was more cocaine in a \u201ccollege refrigerator\u201d behind defendant in the bedroom. Inside, officers found several bags of powder cocaine on the top shelf. Defendant also indicated that there was money in the pocket of his Carolina Panthers\u2019 jacket; Selogy found over $1,200.00 in the jacket. On the floor of the bedroom closet, officers found roughly eight pounds of marijuana wrapped in cellophane. In addition to what the officers found in the van and defendant\u2019s bedroom, a plastic bag containing cocaine was found inside a box of hot chocolate in the kitchen.\nDefendant was arrested and charged with trafficking in cocaine by possession and felonious possession of marijuana. Defendant pled not guilty and the case proceeded to trial. Selogy testified at trial that he was responsible for preparing the property control sheets specifying the amount of drugs seized from the West Ridge Road residence. He stated that the property control sheet indicated that (1) 2.2 pounds of cocaine were found in defendant\u2019s bedroom; (2) 100 grams of cocaine were seized from the fridge; (3) 0.7 grams were discovered in another closet; (4) 28.9 grams were found in the van; (5) 32.5 grams were discovered in the kitchen; and (6) 11.8 grams were found in a shirt in defendant\u2019s bedroom.\nOfficer Steven Whitsell, a narcotics officer with the CharlotteMecklenburg Police Department, testified that he interviewed defendant later on 21 August 2007 and prepared a typed statement describing the interview. According to the statement, defendant told Whitsell \u201cthat there was approximately 7-8 pounds of marijuana, approximately a kilogram of cocaine and two guns that he had purchased.\u201d Defendant told Whitsell that he had paid \u201c$3000 for the marijuana, $15000 for the kilo of cocaine, and $400 for the guns.\u201d\nMichael Aldridge, a chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that he had been the supervisor of the lab for 20 years. Aldridge testified that although he did not personally weigh or observe the weighing of the seized cocaine, as part of his supervisory duties he calibrated the scale on which it was weighed both the month before and after it was weighed and found that the scale was in \u201cperfect working order.\u201d When asked, Aldridge stated that the analyst that had identified and weighed the cocaine and prepared the lab report was currently working in a crime lab in South Carolina and that she had not been subpoenaed to testify.\nAldridge explained the chain of custody procedures at the lab and stated that they had been followed in this case. Aldridge stated that the lab\u2019s analysis procedures exceeded industry standards and that the types of tests performed and recorded in the lab\u2019s reports are relied upon by experts in the field of forensic chemistry. Aldridge then went on to testify that in his opinion \u2014 based \u201csolely\u201d on the lab report \u2014 the substances seized from the West Ridge Road residence were, in fact, marijuana and cocaine. With respect to the cocaine, Aldridge gave his opinion \u2014 over defendant\u2019s objections \u2014 that approximately 1031.83 grams of cocaine were found in various parcels.\nDefendant moved to dismiss the charges for insufficient evidence, which was denied. Defendant did not testify or present any evidence in his defense. The jury convicted defendant of both charges, and the trial court consolidated them into one judgment and sentenced defendant to a presumptive-range term of 175 to 219 months imprisonment with a credit of 255 days already served. Defendant timely appealed to this Court.\nDiscussion\nDefendant\u2019s sole argument on appeal is that the expert testimony by Aldridge, the crime lab supervisor, as to (he weight of the cocaine found at defendant\u2019s residence constituted impermissible hearsay and violated his right to confront an adverse witness under the Sixth Amendment, as applied in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and most recently in Melendez-Diaz v. Massachusetts, 557 U.S. -, 174 L. Ed. 2d 314 (2009). Defendant does not challenge Aldridge\u2019s testimony that the substances are, in fact, marijuana and cocaine. Nor does defendant argue for reversal of his conviction for felonious possession of marijuana.\nThe Confrontation Clause of the Sixth Amendment \u201cguarantees a defendant\u2019s right to confront those \u2018who bear testimony\u2019 against him.\u201d Melendez-Diaz, 557 U.S. at -, 174 L. Ed. 2d at 321 (quoting Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 193). Thus, \u201c[a] witness\u2019s testimony against a defendant is . . . inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.\u201d Id. at, 174 L. Ed. 2d at 321. The State contends that the lab reports underlying Aldridge\u2019s testimony are not \u201ctestimonial\u201d in nature, and, therefore, his testimony is not barred by the Confrontation Clause.\nAlthough the Supreme Court has declined to exhaustively define what amounts to a \u201ctestimonial\u201d statement, the Court in Crawford observed:\nVarious formulations of this core class of \u201ctestimonial\u201d statements exist: ex parte in-court testimony or its functional equivalent \u2014 that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.\n541 U.S. at 51-52, 158 L. Ed. 2d at 193 (internal citations, quotation marks, and alterations omitted).\nMore recently in Melendez-Diaz, 557 U.S. -, 174 L. Ed. 2d at 320, the Supreme Court addressed the constitutionality of the admission of \u201c \u2018certificates of analysis\u2019 showing the results of the forensic analysis performed on the seized substances.\u201d Because the sole purpose of admitting the sworn certificates under state law was to provide prima facie evidence of the composition, quality, and weight of the substance at trial, \u201c[t]here [wa]s little doubt that the documents . . . fall within the \u2018core class of testimonial statements\u2019 \u201d outlined in Crawford. Id. at -, 174 L. Ed. 2d at 321 (quoting Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 203). Thus the Supreme Court held that under a \u201crather straightforward application of our holding in Crawford,\u201d analysis reports were \u201ctestimonial statements, and the analysts were \u2018witnesses\u2019 for purposes of the Sixth Amendment.\u201d Melendez-Diaz, 557 U.S. at \u2014 , 174 L. Ed. 2d at 322.\nOur Supreme Court has recently held that under Melendez-Diaz, opinion testimony based on an autopsy report including forensic pathology and dental analyses was \u201ctestimonial\u201d in nature. State v. Locklear, \u2014 N.C. -, -, 681 S.E.2d 293, 304-05 (2009). The Locklear Court thus held that the defendant\u2019s right to confrontation was violated by the admission of the expert testimony based on the pathologist\u2019s and dentist\u2019s reports where the \u201cState failed to show that either witness was unavailable to testify or that defendant had been given a prior opportunity to cross-examine them.\u201d Id. at -, 681 S.E.2d at 305.\nThe evidence in this case \u2014 Aldridge\u2019s expert testimony based \u201csolely\u201d on the absent analyst\u2019s lab report \u2014 is indistinguishable from the opinion testimony held to be unconstitutional in Locklear. Similarly, as the State failed to show that the lab analyst who actually weighed the cocaine was unavailable to testify or that defendant had a prior opportunity to cross-examine the analyst regarding the specific report at issue in this case, defendant\u2019s right to confront an adverse witness was violated. The trial court thus erred in overruling defendant\u2019s objections.\nReversal is not required, however, if the error was harmless beyond a reasonable doubt. See N.C. Gen. Stat. \u00a7 15A-1443(b) (2007) (\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless ... it was harmless beyond a reasonable doubt.\u201d); State v. Lewis, 361 N.C. 541, 549, 648 S.E.2d 824, 830 (2007) (applying harmless beyond reasonable doubt analysis to Confrontation Clause violation). \u201c[O]verwhelming evidence of guilt may render error of constitutional dimension harmless beyond a reasonable doubt.\u201d State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988).\nHere, in this case, without objection from defendant, the State produced a statement by defendant that law enforcement officers seized a \u201ckilogram of cocaine\u201d from his residence. In addition, Officer Selogy \u2014 the lead police officer executing the search warrant \u2014 testified at trial that the cocaine seized at defendant\u2019s residence was weighed at the scene and the weight was recorded on property control sheets, which showed six parcels containing over a kilogram of cocaine in total. Defendant\u2019s own statement, in conjunction with the unchallenged testimony of law enforcement officers that they seized over one kilogram of cocaine establishes beyond a reasonable doubt that, absent the admission of Aldridge\u2019s testimony, a reasonable jury would have found defendant guilty of trafficking in cocaine. See N.C. Gen. Stat. \u00a7 90-95(h)(3) (2007) (providing that \u201c[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine\u201d is guilty of \u201c \u2018trafficking in cocaine\u2019 \u201d); see also Locklear, - N.C. at -, 681 S.E.2d at 305 (finding Confrontation Clause violation harmless beyond reasonable doubt where \u201cState presented copious evidence\u201d of defendant\u2019s guilt). Consequently, we find no prejudicial error.\nNo Prejudicial Error.\nChief Judge MARTIN and Judge BRYANT concur.\n. At the time of defendant\u2019s trial, 29 April 2009 through 2 May 2009, the United States Supreme Court had not yet rendered its decision in Melendez-Diaz (25 June 2009).",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State.",
      "Robert W. Ewing for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JORGE ALBERTO GALINDO, Defendant\nNo. COA09-49\n(Filed 20 October 2009)\nConstitutional Law\u2014 right to confrontation \u2014 chemical analysis testimony \u2014 harmless error beyond reasonable doubt\u2014 overwhelming evidence of guilt\nAlthough the admission of an expert\u2019s testimony regarding the weight of cocaine found at defendant\u2019s residence violated his Sixth Amendment right to confrontation since the testifying expert did not personally perform the analysis and generate the lab report, the error was harmless beyond a reasonable doubt. Defendant\u2019s own statement, with the unchallenged testimony of law enforcement officers, established beyond a reasonable doubt that a reasonable jury would have found defendant guilty of trafficking in cocaine even without the expert\u2019s testimony.\nAppeal by defendant from judgment entered 2 June 2008 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 31 August 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State.\nRobert W. Ewing for defendant-appellant."
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  "file_name": "0410-01",
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  "last_page_order": 441
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