{ "id": 4316706, "name": "STATE OF NORTH CAROLINA v. DEWAN KENNETH BRENT", "name_abbreviation": "State v. Brent", "decision_date": "2013-06-27", "docket_number": "No. 275PA11", "first_page": "73", "last_page": "78", "citations": [ { "type": "official", "cite": "367 N.C. 73" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "718 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": -1 }, { "cite": "121 S. Ct. 1106", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2011, "opinion_index": 0 }, { "cite": "531 U.S. 1155", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9763844, 9763685, 9764166, 9765737, 9764938, 9764011, 9765420, 9763374, 9764624, 9763543, 9765562, 9764315, 9764797, 9765278, 9764479 ], "year": 2011, "opinion_index": 0, "case_paths": [ "/us/531/1155-04", "/us/531/1155-03", "/us/531/1155-06", "/us/531/1155-15", "/us/531/1155-11", "/us/531/1155-05", "/us/531/1155-13", "/us/531/1155-01", "/us/531/1155-09", "/us/531/1155-02", "/us/531/1155-14", "/us/531/1155-07", "/us/531/1155-10", "/us/531/1155-12", "/us/531/1155-08" ] }, { "cite": "532 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "806", "parenthetical": "citations omitted" }, { "page": "806" } ], "opinion_index": 0 }, { "cite": "352 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685071 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "581-82", "parenthetical": "citations omitted" }, { "page": "581-82" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0570-01" ] }, { "cite": "697 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2010, "pin_cites": [ { "page": "322", "parenthetical": "citation omitted" }, { "page": "322", "parenthetical": "citations omitted" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "364 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152715 ], "weight": 3, "year": 2010, "pin_cites": [ { "page": "277", "parenthetical": "citation omitted" }, { "page": "277-78" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0272-01" ] }, { "cite": "2011 WL 2462941", "category": "reporters:specialty_west", "reporter": "WL", "year": 2011, "pin_cites": [ { "page": "*7", "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "718 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 548, "char_count": 12039, "ocr_confidence": 0.746, "pagerank": { "raw": 9.115162856034739e-08, "percentile": 0.506671431423222 }, "sha256": "1ceb5991e509da0db8916b74f4fd2e587c7b0719952080ce85718be36a95db5b", "simhash": "1:e7fb22ed6b2dc8ca", "word_count": 1926 }, "last_updated": "2023-07-14T22:06:46.212757+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BEASLEY took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. DEWAN KENNETH BRENT" ], "opinions": [ { "text": "MARTIN, Justice.\nAt defendant\u2019s trial for possession of cocaine, a forensic scientist stated her expert opinion that a substance was cocaine, based upon her independent analysis of testing performed by another analyst in her laboratory. The Court of Appeals held that this testimony violated defendant\u2019s Sixth Amendment right to confront witnesses against him. Because defendant failed to preserve for appeal the issues he raises before this Court, we reverse.\nThe State\u2019s evidence at trial tended to show that on 2 April 2008 Corporal Michael Knight of the Winston-Salem Police Department detained defendant for trespassing on the premises of an apartment complex. After returning to his patrol vehicle to determine whether defendant had any outstanding arrest warrants, Corporal Knight walked back toward defendant, who was sitting on the curb. As Corporal Knight did so, he observed defendant\u2019s left hand drop to his side and an \u201coff-white rocklike object actually roll from his left pants area where his hand was at.\u201d Officer Resendes, who had arrived to provide backup, also saw the object drop and noticed a white chalky substance on defendant\u2019s left hand. The officers confiscated the object and arrested defendant for trespassing.\nAt the Forsyth County magistrates\u2019 office, defendant signed a waiver of his Miranda rights and said he wished to speak with the officers. Corporal Knight and Officer Resendes then conducted an interview of defendant, during which defendant stated that the seized substance was cocaine which he had purchased for one hundred dollars. He further stated that he had intended to place the cocaine in his shoe but it rolled away and was seen by the officers. Defendant was subsequently indicted for felony possession of cocaine, second-degree trespass, and attaining habitual felon status.\nAt trial the State sought to present expert testimony from a forensic drug chemist, Agent Jennifer Lindley, who worked for the State Bureau of Investigation. After conducting a voir dire hearing on the matter, the trial court permitted Agent Lindley to testify \u201cas to her independent opinion\u201d based upon laboratory tests performed by another analyst. During direct examination of Agent Lindley, the following exchange occurred:\nQ. [W]hen you reviewed the data that was generated in this case, were you able to form an opinion as to what the substance that was analyzed was?\nA. Yes, sir.\nQ. And what is your opinion?\nA. It\u2019s my opinion that the substance that was analyzed was cocaine base.\nOn cross-examination, defense counsel further clarified the assumptions upon which Agent Lindley\u2019s opinion rested. For example, the following exchange occurred:\nQ. Would it be fair to say that your opinion is based on these graphs and charts?\nA. Yes, ma\u2019am, it is.\nQ. Not on any testing that you\u2019ve done; correct?\nA. The opinion I formed is based off of the reviewable data which was generated by the tests performed in this case.\nDefendant was found guilty of possession of cocaine and attaining habitual felon status. The Court of Appeals awarded him a new trial, holding that the expert opinion of Agent Lindley was a \u201cmere summarization\u201d of the report created by the non-testifying lab analyst and therefore the admission of the opinion was error. State v. Brent, ___ N.C. App. _, 718 S.E.2d 736, 2011 WL 2462941, at *7 (2011) (unpublished). We allowed the State\u2019s petition for discretionary review to determine whether the lab analyst\u2019s opinion based on the non-testifying analyst\u2019s testing was admissible and whether any error was harmless.\nBefore this Court defendant argues that \u201cadmission of State\u2019s exhibit 6, the charts and graphs data prepared by [the non-testifying analyst], as well as Agent Lindley\u2019s testimony that the substance was cocaine violated Mr. Brent\u2019s right to confront and cross-examine witnesses against him.\u201d The State argues that admission of the expert\u2019s independent opinion and the raw data the expert relied upon did not violate defendant\u2019s rights under the Confrontation Clause. We hold that defendant failed to make timely objections to preserve these issues for appeal. We reverse the decision of the Court of Appeals.\n\u201cGenerally speaking, the appellate courts of this state will not review a trial court\u2019s decision to admit evidence unless there has been a timely objection.\u201d State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (citation omitted); see also N.C. R. App. P. 10(a)(1). To be timely, the objection \u201cmust be contemporaneous with the time such testimony is offered into evidence.\u201d State v. Thibodeaux, 352 N.C. 570, 581-82, 532 S.E.2d 797, 806 (2000) (citations omitted), cert. denied, 531 U.S. 1155, 121 S. Ct. 1106 (2011). \u201cMoreover, [a] defendant los[es] his remaining opportunity for appellate review when he fail[s] to argue in the Court of Appeals that the trial court\u2019s admission of [the evidence] amounted to plain error.\u201d Ray, 364 N.C. at 277-78, 697 S.E.2d at 322 (citations omitted); see also N.C. R. App. P. 10(a)(4).\nAt trial defendant objected to the testimony related to the composition of the substance only outside the presence of the jury. Defendant did not object to admission of either Agent Lindley\u2019s opinion or the raw data exhibit at the time they were offered into evidence. Because an objection \u201cmust be contemporaneous with the time such testimony is offered into evidence,\u201d defendant failed to preserve the alleged errors for review. Thibodeaux, 352 N.C. at 581-82, 532 S.E.2d at 806. Therefore, the Court of Appeals erred by reaching the merits of defendant\u2019s argument on the issue of whether admission of the expert opinion violated the Confrontation Clause. Ray, 364 N.C. at 278, 697 S.E.2d at 322.\nFurther, the other issue defendant raises before this Court- \u2014 that the trial court erred by admitting the raw data upon which the expert relied \u2014 was not considered by the Court of Appeals because defendant failed to raise it in his brief before that court. Thus, defendant not only failed to preserve that issue through objection at trial but, had he preserved the issue, also would have abandoned the issue by failing to raise it in his brief before the Court of Appeals. See N.C. R. App. P. 28(a) (\u201cIssues not presented and discussed in a party\u2019s brief are deemed abandoned.\u201d) Because defendant has waived appellate review of the issues he raises, he is not entitled to a new trial.\nMoreover, even if defendant had preserved the issues he now raises, he would not be entitled to a new trial. As for the issue of the expert stating her opinion, we held in State v. Ortiz-Zape that \u201cadmission of an expert\u2019s independent opinion based on otherwise inadmissible facts or data \u2018of a type reasonably relied upon by experts in the particular field\u2019 does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert.\u201d State v. Ortiz-Zape,_N.C._,_,___ S.E.2d_,_ (2013) (citations omitted). We emphasized that \u201cthe expert must present an independent opinion obtained through his or her own analysis and not merely \u2018surrogate testimony\u2019 parroting otherwise inadmissible statements.\u201d Id. at_,_S.E.2d at__ (citation omitted). At trial the prosecutor handed Agent Lindley State\u2019s exhibit number 6, which Agent Lindley explained contained three machine-produced graphs showing the results of infrared scans. Agent Lindley further explained that these graphs are produced when the machine passes a beam of light through a sample. \u201cAnd depending on the interactions of the sample with that beam of light, we\u2019re able to show a graph based on the absorbents of that sample at each different wavelength. We compare that graph to known standards and are able to make a determination based off of our comparison.\u201d According to Agent Lindley\u2019s testimony, she reviewed the data generated in this case, shown in State\u2019s exhibit 6, and formed an \u201copinion that the substance that was analyzed was cocaine base.\u201d Agent Lindley formed an independent opinion based on her analysis of data reasonably relied upon by experts in her field. In stating her opinion, Agent Lindley did not repeat any out-of-court statements by a non-testifying analyst. Accordingly, Agent Lindley was the person whom defendant had the right to cross-examine, and her testimony stating her opinion did not violate defendant\u2019s rights under the Confrontation Clause. See id. at _,_S.E.2d at_.\nThe trial court also admitted State\u2019s exhibit number 6, the machine-generated graphs showing the results of infrared scans. As we stated in Ortiz-Zape, machine-generated raw data, \u201cif truly machine-generated,\u201d are not statements by a person; they are \u201cneither hearsay nor testimonial.\u201d Id. at_, _ S.E.2d at_ (citations omitted). Thus, machine-generated raw data, if of a type reasonably relied upon by experts in the field, may be admitted to show the basis of an expert\u2019s opinion. See id. at_,_S.E.2d at_. Here, consistent with the standard procedure in her crime laboratory, Agent Lindley analyzed the machine-produced graphs to form her opinion that the substance was cocaine. Admission of these machine-produced graphs to show the basis of Agent Lindley\u2019s opinion did not violate defendant\u2019s rights under the Confrontation Clause.\nDefendant did not present timely objections at trial and thereby failed to preserve the issues he argues before this Court. He lost his remaining opportunity for appellate review by failing to allege plain error before the Court of Appeals. Even if he had presented timely objections at trial, he would not be entitled to a new trial because the trial court did not err in admitting either the expert\u2019s opinion that the substance was cocaine or the exhibit showing the raw data from the testing instruments. We reverse the decision of the Court of Appeals.\nREVERSED.\nJustice BEASLEY took no part in the consideration or decision of this case.", "type": "majority", "author": "MARTIN, Justice." }, { "text": "Chief Justice PARKER,\nconcurring in the result only.\nDefendant having failed to preserve the alleged errors for appellate review, I concur in the result only.", "type": "concurrence", "author": "Chief Justice PARKER," }, { "text": "Justice HUDSON,\nconcurring in the result.\nI agree with the majority\u2019s analysis of the waiver issue. However, the extended discussion of the merits of the case is entirely dictum, with which I do not agree for the reasons I have stated in dissenting opinions in State v. Ortiz-Zape,_N.C._,_S.E.2d_(2013) (329PA11) (Hudson, J., dissenting), and State v. Brewington,_N.C. _,_S.E.2d_(2013) (235PA10) (Hudson, J., dissenting), and in a concurring opinion in State v. Craven,_N.C._,_S.E.2d_ (2013) (322PA10) (Hudson, J., concurring). Therefore, I concur in the result.", "type": "concurrence", "author": "Justice HUDSON," } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Daniel R O\u2019Brien, Assistant Attorney General, for the State-appellant.", "Charlotte Gail Blake for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEWAN KENNETH BRENT\nNo. 275PA11\n(Filed 27 June 2013)\nConstitutional Law \u2014 Confrontation Clause \u2014 expert opinion \u2014 independent analysis of testing performed by another analyst\nThe Court of Appeals erred in a possession of cocaine case by reaching the merits of defendant\u2019s argument that the admission of expert opinion that a substance was cocaine based upon an independent analysis of testing performed by another analyst in the laboratory violated the Confrontation Clause. Defendant did not present timely objections at trial and failed to allege plain error on appeal. Even if he had presented timely objections, he would not have been entitled to a new trial.\nJustice BEASLEY took no part in the consideration or decision in this case.\nChief Justice PARKER, concurring in the result only.\nJustice HUDSON, concurring in the result.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous, unpublished decision of the Court of Appeals,_N.C. App. _, 718 S.E.2d 736 (2011), finding prejudicial error in a judgment entered on 16 February 2010 by Judge Catherine C. Eagles in Superior Court, Forsyth County, and ordering that defendant receive a new trial. Heard in the Supreme Court on 13 February 2013.\nRoy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Daniel R O\u2019Brien, Assistant Attorney General, for the State-appellant.\nCharlotte Gail Blake for defendant-appellee." }, "file_name": "0073-01", "first_page_order": 113, "last_page_order": 118 }