{ "id": 4331657, "name": "STATE OF NORTH CAROLINA v. GLENN EDWARD WHITTINGTON", "name_abbreviation": "State v. Whittington", "decision_date": "2014-01-24", "docket_number": "No. 291PA12", "first_page": "186", "last_page": "196", "citations": [ { "type": "official", "cite": "367 N.C. 186" } ], "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": "728 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": -1 }, { "cite": "557 U.S. 305", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657952 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "286 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "539", "parenthetical": "\"The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1982, "pin_cites": [ { "page": "112", "parenthetical": "\"The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "519", "parenthetical": "concluding that when the defendant moved to suppress his confession on several grounds and the trial judge denied the motion solely \"upon the voluntariness theory,\" the defendant could not argue for the first time on appeal the new basis that his arrest had been unlawful" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "468 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "242-44", "parenthetical": "stating that when the defendant raised at trial a constitutional objection relating to the rights of the testifying witness, he failed to preserve a constitutional issue based on his own rights" } ], "opinion_index": 0 }, { "cite": "343 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798779 ], "year": 1996, "pin_cites": [ { "page": "45-48", "parenthetical": "stating that when the defendant raised at trial a constitutional objection relating to the rights of the testifying witness, he failed to preserve a constitutional issue based on his own rights" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0029-01" ] }, { "cite": "611 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "822", "parenthetical": "\"[C]onstitutional error will not be considered for the first time on appeal" } ], "opinion_index": 0 }, { "cite": "359 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799490 ], "year": 2005, "pin_cites": [ { "page": "366", "parenthetical": "\"[C]onstitutional error will not be considered for the first time on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0328-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838", "parenthetical": "\"[T]he law does not permit parties to swap horses between courts in order to get a better mount. . . .\"" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10", "parenthetical": "\"[T]he law does not permit parties to swap horses between courts in order to get a better mount. . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "743 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "162" } ], "opinion_index": 0 }, { "cite": "455 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "429", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "340 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790193 ], "year": 1995, "pin_cites": [ { "page": "80", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0074-01" ] }, { "cite": "728 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 13, "year": 2012, "pin_cites": [ { "page": "388-90" }, { "page": "389", "parenthetical": "second alteration in original" }, { "page": "388-89" }, { "page": "390" }, { "page": "389" }, { "page": "389" }, { "page": "390" } ], "opinion_index": 0 }, { "cite": "557 U.S. 305", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657952 ], "weight": 10, "pin_cites": [ { "page": "326" }, { "page": "2541" }, { "page": "331" }, { "page": "327" }, { "page": "2541" }, { "page": "331" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/557/0305-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 1 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 1, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "557 U.S. 305", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657952 ], "weight": 3, "pin_cites": [ { "page": "327" }, { "page": "2541" } ], "opinion_index": 1, "case_paths": [ "/us/557/0305-01" ] } ], "analysis": { "cardinality": 947, "char_count": 26629, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14649058690294298 }, "sha256": "7308d05b7741a51a18bd926dc1d910d1bd0f6dc4dfe127e67c1a5e236b048ccd", "simhash": "1:6b416e6af624b1d2", "word_count": 4356 }, "last_updated": "2023-07-14T22:06:46.212757+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BEASLEY joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. GLENN EDWARD WHITTINGTON" ], "opinions": [ { "text": "EDMUNDS, Justice.\nBefore defendant\u2019s 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\u2019s trial, the report was admitted over defendant\u2019s objection. The Court of Appeals reversed defendant\u2019s 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.\nDefendant 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\u2019s Office as his supplier of illicit prescription medicine. In response, Sergeant Phillip Lewis (Lewis), an investigator in the narcotics division of the sheriff\u2019s 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\u2019s house, bought \u201c16 green colored pills\u201d from defendant, and returned to Lewis with the pills.\nOn 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. \u00a7 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\u2019s report, issued on 8 December 2009, identified the \u201csixteen green circular tablets\u201d as \u201cOxycodone \u2014 Schedule II Opium Derivative\u201d with a weight of \u201c4.3 grams.\u201d\nPrior to trial, the State notified defendant that it was invoking North Carolina\u2019s notice and demand statute, N.C.G.S. \u00a7 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 \u201cmatter is or contains a controlled substance\u201d 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. \u00a7 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\u2019s testimony. Id. In a document dated 15 February 2010 titled \u201cNotice of Intention to Introduce Evidence at Trial\u201d 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. \u00a7 90-95(g), \u201cany 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.\u201d The record does not indicate that, before trial, defendant either requested a copy of the report or raised any objection.\nDefendant\u2019s trial began on 6 April 2011. The State called Jason Bryant (Bryant), an investigator with the Nash County Sheriff\u2019s 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 \u201ca lab sheet of their analysis.\u201d When the prosecutor asked Bryant \u201cwhat the lab report states,\u201d 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:\n[DEFENSE COUNSEL]: . . . [T]he second part of my foundation is a constitutional basis, Your Honor. That this officer is not allowed \u2014 not a physician, he\u2019s 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.\nIn response to defendant\u2019s 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:\n[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 \u2014 to analyze the pills, we\u2019re only asking him to read what the State is proposing to admit into evidence.\nTHE COURT: I believe once you gave [defendant] notice of what you\u2019re intending to do [it] is incumbent upon him at that time to indicate the objection\u2014\n[THE STATE]: Yes, sir.\nTHE COURT: \u2014 and you would subpoena the SBI agent here.\n[THE STATE]: Yes, sir. Yes, sir.\nTHE COURT: All right.\nDefendant immediately disagreed with the court\u2019s interpretation, contending that \u201cmy position is that was the law at one time,\u201d then added that \u201cthe Melendez-Diaz case that was decided [by] the United States Supreme Court firmly established the point that I\u2019m trying to make to the Court at this point in this case,\u201d citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Although the court asked defendant if he had anything further, defend- ant provided no additional analysis or argument as the basis for his constitutional objection. The trial court overruled defendant\u2019s constitutional objection and allowed Bryant to testify that the SBI lab report identified the \u201csixteen green circular tablets\u201d as \u201cOxycodone, Schedule II opium derivative, weight of tablets 4.3 grams.\u201d\nLater that same morning, after the jury had been excused for its lunch break, the State requested that its \u201cNotice of Intention to Introduce Evidence at Trial,\u201d which it had filed and delivered to defense counsel before trial, be entered into the court file. Defense counsel responded that he had no objection to the State\u2019s request, but added that \u201cI still rely upon my continuing objections.\u201d The trial court admitted the document. On 7 April 2011, the jury found defendant guilty as charged.\nDefendant appealed his convictions to the Court of Appeals, challenging, inter alia, the introduction of the lab report into evidence over his objection. That court vacated defendant\u2019s convictions on Counts I and II because of a fatal defect in the indictments, a result the State does not contest, and ordered a new trial as to Count III, finding that defendant\u2019s constitutional objection should have been sustained and that admission of the lab report constituted prejudicial error. State v. Whittington,_N.C. App._,_, 728 S.E.2d 385, 388-90 (2012).\nNoting the presumption against a waiver of constitutional rights, the Court of Appeals observed that \u201c \u2018[t]he State bears the burden of proving that a defendant made a knowing and intelligent waiver of his rights[.]\u2019 \u201d Id. at_, 728 S.E.2d at 389 (second alteration in original) (quoting State v. Bunnell, 340 N.C. 74, 80, 455 S.E.2d 426, 429 (1995) (citation omitted)). The court reviewed N.C.G.S. \u00a7 90-95(g)(l), which, when invoked by the State, in part requires the State to provide a copy of the lab report to a defendant prior to trial, id. at __, 728 S.E.2d at 388-89, then reasoned that\n[i]t is the State\u2019s burden to show that it has complied with the requirements of N.C.G.S. \u00a7 90-95(g)(l), and that a defendant has waived his constitutional right to confront a witness against him. This burden includes insuring the record on appeal contains sufficient evidence demonstrating full compliance with N.C.G.S. \u00a7 90-95(g)(l).\nId. at_, 728 S.E.2d at 390.\nObserving that \u201c[t]he State concedes that there is no definitive record evidence that [djefendant ever received a copy of the lab report as required by N.C.G.S. \u00a7 90-95(g),\u201d id. at 728 S.E.2d at 389, the Court of Appeals determined that \u201c[bjecause the record does not show that the State sent [djefendant a copy of the lab report by the required time before trial, . . . [djefendant did not waive his constitutional right to confront the chemical analyst who prepared the lab report.\u201d Id. at_, 728 S.E.2d at 389. Concluding that \u201cit was error for the trial court to admit the lab report into evidence\u201d and that the error was not harmless beyond a reasonable doubt, the Court of Appeals vacated defendant\u2019s convictions in part and granted defendant a new trial in part. Id. at_, 728 S.E.2d at 390. We allowed the State\u2019s Petition for Discretionary Review.\nWe review constitutional issues de novo. State v. Ortiz-Zape,_ N.C._,_, 743 S.E.2d 156, 162 (2013). We first consider the argument that defendant made at trial in support of his constitutional objection. This argument, quoted virtually in its entirety above, is based solely upon defendant\u2019s view that subsection 90-95(g) is no longer good law as a result of the Supreme Court\u2019s 2009 decision in Melendez-Diaz. Subsection 90-95(g), originally included in the statute in 1973, read as follows at the time of defendant\u2019s trial:\n(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 in all proceedings in the district court and superior court divisions of the General Court of Justice 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:\n(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\n(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.\nIf the defendant\u2019s attorney of record, or the defendant if that person has no attorney, fails to file a written objection as provided in this subsection, then the report may!] be admitted into evidence without the testimony of the analyst. Upon filing a timely objection, the admissibility of the report shall be determined and governed by the appropriate rules of evidence.\nNothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report.\nN.C.G.S. \u00a7 90-95(g).\nThus, subsection 90-95(g) is a typical \u201cnotice and demand statute,\u201d as described by the Supreme Court of the United States:\n[N]otice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst\u2019s 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\u2019s appearance live at trial.\nMelendez-Diaz, 557 U.S. at 326, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331. In response to arguments that such statutes shift to a defendant the burden of giving notice of his or her intent to confront the analyst, the Supreme Court found that \u201cthese statutes shift no burden whatever.\u201d Id. at 327, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331. Instead, the Court explained that a\ndefendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial.\nId. (citations omitted). Accordingly, we conclude that Melendez-Diaz had no impact on the continuing vitality of subsection 90-95(g). When the State satisfies the requirements of subdivision 90-95(g)(l) and the defendant fails to file a timely written objection, a valid waiver of the defendant\u2019s constitutional right to confront the analyst occurs.\nWe next consider whether defendant preserved the notice and waiver issue that the Court of Appeals found dispositive. Although the statute requires that the State provide a copy of the lab report to a defendant \u201cbefore the proceeding at which the report would be used,\u201d N.C.G.S. \u00a7 90-95(g)(l), the State\u2019s notice stated only that \u201c[a] copy of report(s) will be delivered upon request.\u201d As a result, the State\u2019s notice was deficient in that, while it establishes that defendant was timely advised of the State\u2019s intent, it leaves the record devoid of proof that defendant was also provided a copy of the lab report prior to trial.\nNevertheless, defendant never advised the trial court that the basis of his constitutional objection was either the State\u2019s notice or the State\u2019s failure to provide a pretrial copy of the lab report. Instead, the transcript indicates that the constitutional objection, first made orally at trial, was based entirely on defendant\u2019s mistaken belief that the procedure set out in subsection 90-95(g) had been invalidated by the Supreme Court\u2019s opinion in Melendez-Diaz. Although the trial court gave defendant ample opportunity to raise questions regarding the State\u2019s compliance with subsection 90-95(g) or any other basis for his objection to admission of the lab report, defendant gave none. Thus, while defendant adequately advised the trial court that the basis for his objection was the Confrontation Clause, the \u201cspecific grounds\u201d that North Carolina Rule of Appellate Procedure 10(a)(1) required defendant set out for the trial court did not include any complaint about pretrial delivery of the lab report. N.C. R. App. P. 10(a)(1). Only in defendant\u2019s brief to the Court of Appeals did he \u201cswap horses\u201d to raise for the first time the issue of the adequacy of the State\u2019s notice to him. See Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (\u201c[T]he law does not permit parties to swap horses between courts in order to get a better mount. . . .\u201d). Consequently, the objection that defendant raised in the trial court was properly overruled because subsection 90-95(g) is still good law, while no objection relating to the State\u2019s compliance vel non with subsection 90-95(g) was ever brought to the trial court\u2019s attention. Because defendant did not raise or preserve at trial any constitutional theory relating to the State\u2019s failure to comply with the provisions of subdivision 90-95(g)(l), he waived appellate review based upon inadequate notice. N.C. R. App. P. 10(a)(1); State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) (\u201c[C]onstitutional error will not be considered for the first time on appeal); see also State v. King, 343 N.C. 29, 45-48, 468 S.E.2d 232, 242-44 (1996) (stating that when the defendant raised at trial a constitutional objection relating to the rights of the testifying witness, he failed to preserve a constitutional issue based on his own rights); State v Benson, 323 N.C. 318-19, 321, 372 S.E.2d 517, 519 (1988) (concluding that when the defendant moved to suppress his confession on several grounds and the trial judge denied the motion solely \u201cupon the voluntariness theory,\u201d the defendant could not argue for the first time on appeal the new basis that his arrest had been unlawful); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (\u201cThe theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\u201d).\nBecause defendant failed properly to raise or preserve the issue regarding the State\u2019s compliance with subsection 90-95(g), we reverse that portion of the opinion of the Court of Appeals that reversed defendant\u2019s conviction on Count III of the indictment. The remaining issues addressed by the Court of Appeals are. not before this Court and its decision as to these matters remains undisturbed. This case is remanded to the Court of Appeals for consideration of the remaining assignments of error.\nREVERSED IN PART AND REMANDED.\n. In 2013, after defendant\u2019s trial, the General Assembly amended subsection 90-95(g) by changing the term \u201cmay\u201d to \u201cshall.\u201d Act of June 13, 2013, ch. 171, sec. 7, 2013, 2 N.C. Adv. Legis. Serv. 421, 423 (LexisNexis) (captioned \u201cAn Act to Amend the Laws Regarding Disposition of Blood Evidence, Admissibility of Reports after Notice and Demand, and Expunction of DNA Samples Taken Upon Arrest.\u201d).", "type": "majority", "author": "EDMUNDS, Justice." }, { "text": "Justice HUDSON\ndissenting.\nBecause in my view the majority here improperly shifts the burden of proving compliance with N.C.G.S. \u00a7 90-95(g) from the State to defendant, I respectfully dissent.\nIt is true that under Melendez-Diaz v. Massachusetts and other Confrontation Clause precedent, \u201c[t]he defendant always has the burden of raising his Confrontation Clause objection.\u201d 557 U.S. 305, 327, 129 S. Ct. 2527, 2541 (2009). In the context of a trial on drug offenses, this means that if the State attempts to introduce a lab report without calling the testing analyst to the stand, the defendant must object on constitutional Confrontation Clause grounds to protect his right to confront witnesses against him. Here the practical result of the majority opinion is that a defendant who wishes to challenge the State\u2019s compliance with our notice and demand statute must also object specifically on those grounds. This is not necessary under the cases as I read them. When a defendant raises a Confrontation Clause objection \u2014 whether because the State is attempting to have a lay witness read the lab report into evidence or that the State has called to the stand a substitute analyst who has no truly independent opinion to offer \u2014 he has met his constitutional burden. The burden is then on the State to prove waiver, as subsection 90-95(g) can provide. To prove waiver the State must show that it (1) \u201cnotifiefd] 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\u201d and (2) \u201cprovide[d] a copy of the report to the defendant.\u201d N.C.G.S. \u00a7 90-95(g)(l) (2013). This statute appears to require the State\u2019s showing to include documentation, not mere assertions. Therefore, when the State plans on introducing a lab report into evidence without the testimony of the testing analyst and the State believes it has complied with the requirements of subsection 90-95(g), the State should be prepared to submit that documentation at trial to prove compliance in case of an objection by the defendant. If the defendant further challenges that proof (arguing, for example, that he did not receive either or both of the documents), then the trial court is properly situated to review the evidence and rule on the matter. Once the State has shown compliance with the requirements placed on it under subdivision 90-95(g)(1), the burden shifts to the defendant to prove that he \u201cfile[d] a written objection with the court, with a copy to the State, at least five business days before the proceeding.\u201d Id. \u00a7 90-95(g)(2) (2013). However, the statute appears to shift that burden to a defendant only if the State has proved its compliance, and accordingly, without the State\u2019s showing of compliance with the statutory requirements, the defendant need not object.\nThe State argued, and the majority has agreed, that without a specific objection on subsection 90-95(g) grounds, the State would not be aware that it might later be required to prove its compliance with the statute; this argument serves as the basis for the majority\u2019s claim that defendant is attempting to \u201cswap horses between courts in order to get a better mount.\u201d Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). In my opinion, this argument fails because an objection on Confrontation Clause grounds necessarily includes failure to comply with N.C.G.S. \u00a7 90-95(g). If at trial a defendant objects on any Confrontation Clause basis, the easiest response a prosecutor can make is to show waiver \u2014 because if a defendant has waived his right to object, he has already lost on that issue. In that sense, the constitutional Confrontation Clause right is inextricably bound with the notice and demand statute allowing waiver: the constitutional objection can be countered by showing waiver, and conversely, any procedural objection to compliance with the statute could undermine the State\u2019s claim that a defendant waived his constitutional Confrontation Clause rights. Moreover, here it is clear that the prosecutor was well aware that the State\u2019s compliance with subsection 90-95(g) would be at issue on appeal, despite no specific objection from defendant on those grounds. This conclusion is evidenced by the colloquy in which the State moved the Notice into evidence: \u201c[The State]: ... I anticipate by the way things are going that there could be a possible appeal and I just want the record on appeal to reflect that [the Notice] was part of the record.\u201d Any such Confrontation Clause objection should instantly alert the State that its compliance with the notice and demand statute is being challenged, and the State then has the burden of proving that it complied with the statutory requirements.\nThe majority also highlights defense counsel\u2019s alleged contention that subsection 90-95(g) is no longer good law in light of Melendez-Diaz and his failure to challenge the State\u2019s assertion that it complied with the statutory requirements. I agree with the majority that \u201cMelendez-Diaz had no impact on the continuing vitality of subsection 90-95(g).\u201d Ultimately, though, while the transcript here does appear to show some confusion on the issues, it does not matter what defense counsel said or did not say. Defendant met his initial burden by objecting to admission of the lab report in violation of his\nConfrontation Clause rights. The burden then shifted to the State to prove compliance with our notice and demand statute, which it failed to do. Any further commentary from defense counsel was unnecessary. Best practices would dictate that a defendant alert the trial court if the State fails to meet its burden, but such an objection is not required. Protection of constitutional Confrontation Clause rights requires a defendant to object initially. I conclude that here, Defendant met his burden; the State did not meet its own burden to show waiver.\nHere, while the State submitted documentary evidence to show compliance with the notice requirement, the State did not submit any evidence to show that it actually sent a copy of the lab report to defendant. The State\u2019s bald assertion that \u201c[c]opy of the report was delivered to [defense counsel]\u201d is insufficient. Therefore, I conclude that the State failed to meet its burden under subsection 90-95(g) to prove that defendant waived his constitutional Confrontation Clause rights and the trial court erred in overruling his objection to admission of the lab report into evidence. Defendant did not need to further object or challenge any evidence presented by the State because the State failed to meet its initial burden.\nFor the reasons stated above, I respectfully dissent.\nJustice BEASLEY joins in this dissenting opinion.\n. As noted by the majority, while the State\u2019s \u201cNotice of Intention to Introduce Evidence at Trial\u201d form is sufficient to give notice, the form is also troubling in some aspects in that it may be inconsistent with the statute. Specifically, the form states that \u201c[a] copy of report(s) will be delivered upon request.\u201d As is made clear by N.C.G.S. \u00a7 90-95(g)(l), the State must provide a copy of the lab report, regardless of whether it is requested.", "type": "dissent", "author": "Justice HUDSON" } ], "attorneys": [ "Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney General, for the State-appellant.", "George B. Currinfor defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GLENN EDWARD WHITTINGTON\nNo. 291PA12\n(24 January 2014)\n1. Constitutional Law \u2014 right to confront witnesses \u2014 lab report \u2014 State\u2019s notice of intent\nMelendez-Diaz v. Massachusetts, 557 U.S. 305, had no impact on the continuing vitality of N.C.G.S. \u00a7 90-95(g) (notice of intent to introduce a lab report without calling the chemist). A valid waiver of defendant\u2019s constitutional right to confront the chemical analyst occurs when the State satisfies the requirements of N.C.G.S. \u00a7 90-95(g)(l) and defendant fails to file a timely written objection.\n2. Appeal and Error \u2014 preservation of issues \u2014 introduction of lab report \u2014 failure to object at trial on specific grounds\nDefendant waived appellate review of the State\u2019s notice of intent to introduce a lab report without testimony from the chemist where defendant\u2019s objection at trial was based only on his mistaken belief that N.C.G.S. \u00a7 90-95(g)(l) had been invalidated by Melendez-Diaz v. Massachusetts, 557 U.S. 305, and not the State\u2019s failure to provide a copy of the lab report. Defendant adequately advised the trial court that the basis for his objection was the Confrontation Clause, but defendant did not set out specific grounds concerning pretrial delivery of the lab report.\nJustice HUDSON dissenting.\nJustice BEASLEY joins in this dissenting opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 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. Heard in the Supreme Court on 18 November 2013.\nRoy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney General, for the State-appellant.\nGeorge B. Currinfor defendant-appellee." }, "file_name": "0186-01", "first_page_order": 226, "last_page_order": 236 }