{ "id": 4181403, "name": "STATE OF NORTH CAROLINA v. JARVIS LEON WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "2010-12-07", "docket_number": "No. COA10-58", "first_page": "422", "last_page": "428", "citations": [ { "type": "official", "cite": "208 N.C. App. 422" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "659 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640827 ], "year": 2008, "pin_cites": [ { "page": "87", "parenthetical": "Steelman, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0079-01" ] }, { "cite": "653 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639999 ], "year": 2007, "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0892-01" ] }, { "cite": "673 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150659 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0008-01" ] }, { "cite": "189 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156165 ], "year": 2008, "pin_cites": [ { "page": "653", "parenthetical": "Steelman, J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0640-01" ] }, { "cite": "699 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. App. 245", "category": "reporters:state", "reporter": "N.C. App.", "year": 2010, "opinion_index": 0 }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "681 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "687 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "158", "parenthetical": "\"[M]ere lay opinion that a substance is a controlled substance based solely on its physical appearance is insufficient evidence from which a jury could find beyond a reasonable doubt that the substance is, in fact, controlled.\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "696 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "755" } ], "opinion_index": 0 }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "52" }, { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "174 L. Ed. 2d 314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 3657952 ], "year": 2009, "pin_cites": [ { "page": "321", "parenthetical": "notingthat testimonial evidence includes \" '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' \"" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "692 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "431", "parenthetical": "holding that testimony from the non-testing chemist eroded the defendant's constitutional rights and that the defendant was entitled to a new trial" } ], "opinion_index": 0 }, { "cite": "690 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "291", "parenthetical": "holding that there was no error where a testifying chemist provided her own analysis and expert opinion regarding the accuracy of a testing chemist's report based on her \"peer review\"" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "688 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "692 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 809", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "684 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "511-12", "parenthetical": "holding that there was no error when the testifying DNA analyst testified to her own independent analysis which was merely based on the analysis of the testing analyst" }, { "page": "511" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "683 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "693 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2010, "pin_cites": [ { "page": "187-88" }, { "page": "189", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "191", "parenthetical": "holding that testimony from a chemist who conducted no independent analysis of the substance was admitted in error and defendant was therefore entitled to a new trial" }, { "page": "188" }, { "page": "189" } ], "opinion_index": 0 }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319", "parenthetical": "citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "647", "parenthetical": "citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "187 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375393 ], "year": 2007, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0593-01" ] } ], "analysis": { "cardinality": 812, "char_count": 16877, "ocr_confidence": 0.736, "pagerank": { "raw": 9.769914183508685e-08, "percentile": 0.5315647746258566 }, "sha256": "95e374bb5b9d391c752d273592da934648a02e05b55746ce95eb64f8348da174", "simhash": "1:a3997efaf4332c5e", "word_count": 2756 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JARVIS LEON WILLIAMS" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant was indicted upon charges of possession with intent to sell or deliver cocaine and of having attained the status of an habitual felon. Defendant pled not guilty.\nAt trial, the evidence tended to show that on 2 April 2008, a confidential informant told Sergeant Brian Scharf that a black male named Jarvis was selling cocaine from the front porch of 429 Heflin Street. The informant told the officer that the cocaine was located in a hanging flower pot. Sergeant Scharf and Officer Gilliland responded to the tip by driving to 429 Heflin Street, where they saw defendant sitting on the front porch. They also observed a hanging flower pot. Sergeant Scharf saw a small plastic bag sticking out of the flower pot. He handcuffed defendant and searched him. During the search of defendant, he found and collected $195 in small denominations. He retrieved the bag out of the flower pot. The bag contained a substance which Sergeant Scharf believed to be crack cocaine.\nAt the police station, defendant made the following statement to the police:\n[t]he cocaine that Officer Scharf found at 429 Heflin Street was put there by a black male named Chris. He put it there to sell it. When I got there, Chris told me the cocaine was there so I could sell it for him until he got back. I sold about thirty or forty dollars worth today. The cocaine was not mine. The cocaine was in a clear plastic bag in a flower pot hanging from the porch ceiling.\nSergeant Scharf testified that, during the course of his eleven-year employment at Charlotte Mecklenburg Police Department (CMPD), he had received training in the identification of drugs and controlled substances. He had been trained to identify crack cocaine \u201c[b]y the way it looks, by the way it\u2019s shaped, by the way it\u2019s packaged, the color.\u201d He testified that crack cocaine has \u201ca certain smell to it because it\u2019s made with powder cocaine chemicals, bringing it together to make it a hard substance to be able to ingest it by smoking it.\u201d He stated that he has identified substances and then had lab results confirming his identifications that were \u201caccurate a hundred percent of the time.\u201d Scharf testified that, over the course of his career, he had participated in \u201c[o]ver a thousand\u201d drug and narcotic arrests \u2014 between three quarters and two thirds of which involved crack cocaine \u2014 and that each time, he observed the substance. He testified that he believed that the substance seized from the flower pot in the present case was crack cocaine.\nOfficer Gilliland testified that, during the course of his eight year employment at CMPD, he had also received training in identifying substances and drug paraphernalia. He testified that he had been directly involved in approximately 75 arrests that involved cocaine or crack cocaine. He then testified that \u201cScharf retrieved the baggie from the flower pot, which had crack cocaine in it.\u201d Gilliland confirmed that he had been able to observe the bag\u2019s contents.\nAt trial, over defendant\u2019s objection, CMPD crime lab forensic chemist Ann Charlesworth detailed the process that chemists in the lab follow when testing substances. She explained that forensic chemists first conduct a preliminary color test on a substance, and then extract a small amount of the substance to put with a solvent in a GC Mass Spec instrument. Charlesworth testified that in this case a color test was done twice and a GC Mass Spec test was done once. She testified that these are the same tests that she and other experts in her field reasonably rely upon when forming an opinion as to the weight and nature of substances.\nCharlesworth explained that the GC Mass Spec generates a graphical result which a forensic chemist must interpret. Chemists look at retention time, which is specific for each chemical substance, and the graphical result from the GC Mass Spec, in order to see how well the graph matches the known standard for the substance.\nOnce a chemist has completed his or her analysis of a substance, all cases are then peer reviewed. In explaining what is done during a peer review, Charlesworth testified:\nI look at a worksheet and see what the description of the item was, how much the item weighed, and what tests were conducted. And then I also look at the instrument printouts from the GC Mass Spec, and I interpret those and see if I agree with the results that the chemist came up with, and then I look at the report and make sure it looks to be correct.\nCharlesworth stated that she conducted the same type of review that she would have had she been the peer-reviewer. She agreed with the original forensic chemist, DeeAnne Johnson, \u201cthat from the printouts from the GC Mass Spec that the cocaine did come out, and it chemically matche[d] with the cocaine standard ... in [the] library.\u201d\nOn cross-examination, it was clarified that Charlesworth herself did not analyze the substance itself. Nor was Charlesworth present on 16 September 2008 when the tests were run. Charlesworth also did not generate her own report. Rather, she explained that it was her role to assure that Johnson followed the protocol and procedures to correctly analyze the substance.\nOn 1 September 2009, the jury found defendant guilty of possession with intent to sell and/or deliver cocaine. Defendant then pled guilty to being an habitual felon. He was sentenced to 107 to 138 months\u2019 imprisonment.\nDefendant appeals, arguing that the testimony of Charlesworth violated his Sixth Amendment right to confrontation. We agree.\nThis Court reviews alleged violations of constitutional rights de novo. State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007). Under the de novo standard of review, this Court \u201cconsiders the matter anew and freely substitutes its own judgment for that of the [trial court].\u201d In re Appeal of the Greens of Pine Glen Ltd. P\u2019ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).\nThe Sixth Amendment to the United States Constitution provides that, \u201c[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.\u201d U.S. Const. amend. VI. Our Court in State v. Brewington, - N.C. App. -, 693 S.E.2d 182 (2010), recently traced the lineage of the Confrontation Clause as it applies to situations where a chemist testifies to a \u201cpeer review\u201d of tests done by other chemists. See id. at -, 693 S.E.2d at 187-88 (discussing State v. Galindo, \u2014 N.C. App. -, 683 S.E.2d 785 (2009), State v. Mobley, - N.C. App. -, 684 S.E.2d 508 (2009), disc. review denied, 363 N.C. 809, 692 S.E.2d 393 (2010), State v. Davis, - N.C. App. -, 688 S.E.2d 829 (2010), State v. Hough, - N.C. App.-, 690 S.E.2d 285 (2010), and State v. Brennan, - N.C. App. -, 692 S.E.2d 427 (2010)). After discussing the development of this line of cases, the Brewington Court noted that:\n[c]onfrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. Like expert witnesses generally, an analyst\u2019s lack of proper training or deficiency in judgment may be disclosed in cross-examination.\n. . . [T]he purpose of requiring the analysts themselves testify is so that their honesty, competence, and the care with which they conducted the tests in question could be exposed to testing in the crucible of cross-examination. Thus, to allow a testifying expert to reiterate the conclusions of a non-testifying expert would eviscerate the protection of the Confrontation Clause.\nId. at -, 693 S.E.2d at 189 (internal quotation marks and citations omitted). The Court then went on to describe a four-pronged test which applies in these cases:\n(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\u2019s report or analysis; and (4) if the testifying expert summarized another non-testifying expert\u2019s report or analysis, determine whether the admission of the document through another testifying expert is reversible error.\nId.\nTurning now to the present case, it is clear that the report detailing the tests done by Johnson and then \u201cpeer reviewed\u201d and testified about by Charlesworth is testimonial. See Melendez-Diaz v. Mass., - U.S. -, -, 174 L. Ed. 2d 314, 321 (2009) (notingthat testimonial evidence includes \u201c \u2018statements 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\u2019 \u201d) (quoting Crawford v. Washington, 541 U.S. 36, 52, 158 L. Ed. 2d 177, 193 (2004)). Moreover, there is nothing in the record supporting any conclusion that defendant was given the opportunity to cross-examine Johnson.\nThis brings us to the third prong of the test: determining whether Charlesworth was offering an independent opinion or merely summarizing Johnson\u2019s report. Defendant argues that Charlesworth merely summarized Johnson\u2019s results, thus making this a case similar to Brennan, - N.C. App. at -, 692 S.E.2d at 431 (holding that testimony from the non-testing chemist eroded the defendant\u2019s constitutional rights and that the defendant was entitled to a new trial), or Brewington, - N.C. App. at -, 693 S.E.2d at 191 (holding that testimony from a chemist who conducted no independent analysis of the substance was admitted in error and defendant was therefore entitled to a new trial). The State, on the other hand, analogizes Charlesworth\u2019s testimony to the testimony given in Mobley, - N.C. App. at -, 684 S.E.2d at 511-12 (holding that there was no error when the testifying DNA analyst testified to her own independent analysis which was merely based on the analysis of the testing analyst). The State argues that Charlesworth did not merely restate Johnson\u2019s results but \u201creviewed the underlying report to determine if Ms. Johnson had followed all standard testing protocols ... [and] the data on which Ms. Johnson\u2019s conclusions were based [in order to] form her own expert opinion about the composition of the suspected cocaine.\u201d\nThe present case is distinguishable from Mobley. In Mobley, the testifying expert compared the DNA profile from a buccal swab taken from the defendant to the DNA profile taken from a vaginal swab of the victim. Mobley, - N.C. App. at -, 684 S.E.2d at 511. The expert then testified \u201cnot just to the results of other experts\u2019 tests, but to her own technical review of those tests, her own expert opinion of the accuracy of the non-testifying experts\u2019 tests, and her own expert opinion based on a comparison of the original data.\u201d Id. (emphasis added). In the present case, on the other hand, Charlesworth did not even see the original substance.\nThe State also relies upon Hough, - N.C. App. at -, 690 S.E.2d at 291 (holding that there was no error where a testifying chemist provided her own analysis and expert opinion regarding the accuracy of a testing chemist\u2019s report based on her \u201cpeer review\u201d). The difficulty that this Court finds with making a distinction between Hough, pointed to by the State on the one hand, and Brennan and Brewington, to which defendant directs us on the other hand, is that, despite their different holdings, the testimony given by Charlesworth was substantively the same as the testimony given by the expert in all three of those cases. The Brewington Court drew a narrow distinction in order to explain the \u201cno error\u201d holding in Hough by noting that, \u201c[djespite the fact that the testifying expert in Hough did not conduct the tests on the contraband in issue, we concluded that the testifying expert conducted a \u2018peer review\u2019 of her colleague\u2019s work.\u201d Brewington, - N.C. App. at -, 693 S.E.2d at 188. The Brewington Court cautioned that it was not the holding of Hough \u201cthat every \u2018peer review\u2019 will suffice to establish that the testifying expert is testifying to his or her expert opinion; however, [in Hough, the expert\u2019s] testimony was sufficient to establish that her expert opinion was based on her own analysis of the lab reports.\u201d Id. (quoting Hough, - N.C. App. at -, 690 S.E.2d at 291).\nWhile the relevancy of a \u201cpeer review\u201d of underlying lab reports which themselves are not admitted for the truth of the matter asserted may be questioned, Brewington correctly emphasizes the importance of cross-examination as a tool to expose, among other things, the care (or lack thereof) with which a chemist conducted tests on a substance. Brewington, - N.C. App. at -, 693 S.E.2d at 189.\nWith this in mind, we turn to the present case and note that Charlesworth did not conduct any tests on the substance, nor was she present when Johnson did. We think that these facts are decisive and show that Charlesworth could not have provided her own admissible analysis of the relevant underlying substance. See State v. Craven, - N.C. App. -, -, 696 S.E.2d 750, 755 (2010). We therefore now hold that Charlesworth\u2019s testimony detailing her \u201cpeer review\u201d was merely a summary of the underlying analysis done by Johnson. Therefore admitting this testimony was error.\nThis brings us to the fourth prong of the test identified in Brewington, whether the admission of this hearsay testimony was reversible error. The State bears the burden of proving the error was harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2009) (\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.\u201d).\nDefendant was charged with possession of cocaine, which requires the State to show beyond a reasonable doubt that the substance defendant possessed was actually cocaine. See N.C. Gen. Stat. \u00a7 90-95(a)(l) (2009). Besides Charlesworth\u2019s testimony as to the chemical composition of the substance seized, the only other evidence that the substance sold by defendant was in fact cocaine was the testimony of Officer Gilliland and Officer Scharf that the substance seized from the flower pot was cocaine and the statement given by the defendant that \u201cChris told me the cocaine was there so I could sell it for him until he got back. I sold about thirty or forty dollars worth today. The cocaine was not mine.\u201d The State contends that this evidence renders any error harmless. We disagree.\nThe testimony of defendant and police officers alone, despite both officers\u2019 credentials and experience, is insufficient to show that the substance possessed was cocaine. The State must still present evidence as to the chemical makeup of the substance. State v. Nabors, - N.C. App. -, -, 700 S.E.2d 153, 158 (2010) (\u201c[M]ere lay opinion that a substance is a controlled substance based solely on its physical appearance is insufficient evidence from which a jury could find beyond a reasonable doubt that the substance is, in fact, controlled.\u201d); State v. Meadows, - N.C. App. -, -, 687 S.E.2d 305, 309 (\u201c \u2018[E]xisting precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.\u2019 \u201d) (quoting State v. Ward, - N.C. App. -, -, 681 S.E.2d 354, 371 (2009), aff'd, 364 N.C. 133, 694 S.E.2d 738 (2010)), cert. denied, 364 N.C. App. 245, 699 S.E.2d 640 (2010); State v. Llamas-Hernandez, 189 N.C. App. 640, 653, 659 S.E.2d 79, 87 (2008) (Steelman, J., concurring in part and dissenting in part), rev\u2019d and dissent adopted, 363 N.C. 8, 673 S.E.2d 658 (2009).\nBecause we conclude that this error was not harmless, defendant is entitled to a\nNew trial.\nJudges STROUD and ERVIN concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Daniel D. Addison, Special Deputy Attorney General, for the State.", "Don Willey for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JARVIS LEON WILLIAMS\nNo. COA10-58\n(Filed 7 December 2010)\nConstitutional Law\u2014 right to confrontation \u2014 lab results\nA defendant\u2019s Sixth Amendment right to confrontation was violated where lab results were presented by a forensic chemist who did not herself perform the tests on which her testimony was based, nor was she present when those tests were performed. Cross-examination was important to expose, among other things, the care or lack of care with which a chemist conducted tests.\nAppeal by defendant from judgments entered 1 September 2009 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 September 2010.\nRoy Cooper, Attorney General, by Daniel D. Addison, Special Deputy Attorney General, for the State.\nDon Willey for defendant-appellant." }, "file_name": "0422-01", "first_page_order": 446, "last_page_order": 452 }