No. COA11-37 JUDICIAL DISTRICT TWENTY-SIX

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No. COA11-37 JUDICIAL DISTRICT TWENTY-SIX

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)From Mecklenburg County

v.)Nos. 07CRS211318

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WILLIAM BAILEY,)

(A.K.A DEVONTRAY BROOKS))

Defendant)

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DEFENDANT APPELLANT’S BRIEF

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QUESTIONS PRESENTED

1. DID THE COURT ERR WHEN IT ADMITTED, OVER THE DEFENDANT’S OBJECTION, THE OPINION OF WITNESS JENNIFER SUSAN LEISER REGARDING THE IDENTIFICATION AND WEIGHT OF THE ALLEGED MARIJUANA?

1. DID THE COURT ERR WHEN IT ADMITTED, OVER THE DEFENDANT’S OBJECTION, STATE’S EXHIBITS 1, 11, 12, 13A, 13B, 14, AND 15, WHEN THE ADMISSION OF SAID EXHIBITS VIOLATED THE DEFENDANT’S RIGHT TO CONFRONTATION AND CROSS-EXAMINATION?

STATEMENT OF THE CASE

The action of State of North Carolina v. William Bailey (a.k.a.,Devontray Brooks), Mecklenburg County File No. 07 CRS 211318, alleging one count of Possession With Intent to Sell or Deliver a Controlled Substance and one count of Felony Possession of Marijuana, came on for jury trial in the General Court of Justice, Superior Court Division, County of Mecklenburg, at the March 15, 2010 Criminal Session, the Honorable Calvin E. Murphy, judge presiding, and at the May 11, 2010 Criminal Session, the Honorable Calvin E. Murphy, judge presiding. During the March 15, 2010 Criminal Session trial, the jury returned a verdict of guilty on the charge of Felony Possession of Marijuana. On May 14, 2010, the Court entered judgment, sentencing the Defendant to a term of imprisonment of 9 to 11 months in the North Carolina Department of Corrections. The Defendant gave timely notice of appeal in open court. The record on appeal was filed on January 7, 2011 and mailed from the clerk’s office on January 19, 2011.

STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2010).

STATEMENT OF THE FACTS

On March 10th, 2007, Officers Michael Kossick and Martha Roman, of the Charlotte Mecklenburg Police Department received a call for service at the Target store on University Boulevard. (T. p. 157) The call for service involved a claim that a person in Target was in the process of stealing items. (T. p. 158) The call also claimed that the person suspected of stealing items from Target was armed with a knife or a box cutter. (T. p. 158) Upon arriving at Target, Officers Kossick and Roman met with the loss prevention manager from Target (T. p. 158) and went to the restroom area of the store to wait for the person, suspected of stealing items, to come out of the restroom. (T. p. 158) Officer Kossick patted down the individual, later identified as William Bailey (T. p. 160) and took Mr. Bailey to the loss prevention office. (T. p. 160) Mr. Bailey agreed to accompany both Officers Kissick and Roman ot the loss prevention office. (T. p. 58)

At that point, the Officers began conducting an investigation into a potential charge of larceny. (T. p. 161) According to Officer Kissick, he asked Mr. Bailey if there was any merchandise in his car that belonged to Target. (T. p. 164) Mr. Bailey told Officer Kissick there was no merchandise in his car and, according to Officer Kissick, handed Officer Kissick his car keys and gave consent for his vehicle to be searched. (T. p. 164)

Officer Kissick testified that during his search of Mr. Bailey’s car, under the front seat of the car, he found a clear plastic baggie containing a leafy substance that he suspected to be marijuana. (T. p. 168) Officer Kissick collected the suspected marijuana as evidence, went back into the Target and spoke with Officer Roman. During his conversation with Officer Roman, Officer Roman related to him that Mr. Bailey had told her [Officer Roman] that there might be marijuana in the vehicle. (T. p. 171) Mr. Bailey was then placed under arrest and charged with possession with intent to sell and deliver marijuana. (R. p. 96)

Officer Kissick then transported the evidence collected during the investigation “down to property control to turn it in as evidence.” (T. p. 174) The suspected marijuana, seized as evidence from the vehicle of Mr. Bailey, was included in the evidence taken to property control. (T. p. 174)

At trial, the prosecution was allowed to introduce into evidence the analysis of the suspected marijuana. The analysis was conducted by an analyst for the chemistry section Charlotte-Mecklenburg Police Department crime laboratory named deAnn Johnson. (T. p. 284) However, the analyst, deAnn Johnson, was not called to testify during Mr. Bailey’s trial. Instead, the prosecution relied on the testimony of Jennifer Susan Leiser, an employ in the chemistry section of the Charlotte-Mecklenburg Police Department Crime Laboratory. (T. p. 280)

At the time of the trial, the analyst who actually conducted an analysis of the suspected marijuana, was no longer employed with the crime laboratory and was located in a county referred to at trial as “York.” (T. pp. 284-285) Ms. Leiser admitted that she conducted no analysis in the case and only reviewed the final lab report, the worksheet, the date produced by lab instruments, and the property sheet (T. pP. 291 and 320-321) and that she could have done her own analysis of the suspected marijuana, but did not. (T. p. 323)

Having apparently conducted no analysis of the suspected marijuana, Ms. Leiser was nevertheless allowed to give the jury her expert opinion, over the Defendant’s objection, that the substance was marijuana and that it was of an amount which weighed 58.73 grams. (T. p. 292) Through Ms. Leiser’s testimony, the prosecution was allowed to introduce into evidence, over the Defendant’s objection, the following items (T.p. 311):

1)State’s Exhibit 11 – the final report of the CMPDCL (R. p. 31);

2)State’s Exhibit 12 – the chemistry drug worksheet of CMPDCL (R. p. 33);

3)State’s Exhibit 13A and 13B – printouts from the instruments used by CMPDCL to test the suspected marijuana (R. pp. 35 and 37);

4)State’s Exhibit 14 – a copy of the Charlotte-Mecklenburg Police Department Property Sheet (R. p. 39); and

5)State’s Exhibit 15 – a copy of the lab request from the Charlotte-Mecklenburg Police Department (R. p. 41).

The evidence for the State consisted of the testimony of Officers Kossick and Roman, and Criminalist Leiser. The Defendant presented no evidence.

The jury was instructed on felony possession of marijuana, which is possessing a quantity of marijuana which exceeds more than one and a half ounces,(T. p. 403) as well as the lesser-included offense of misdemeanor possession of marijuana (T. p. 404) The jury was also instructed on the felony of possession with intent to sell and deliver marijuana (T. pp. 404-405) and the charge of misdemeanor possession of drug paraphernalia. (T. pp. 406 – 407)

The jury acquitted Mr. Bailey on the charges of possession with intent to sell or deliver marijuana (T. p. 419) and possession of drug paraphernalia. (T. p. 420) The jury convicted the Defendant on the charge of Felony Possession of Marijuana (T. p. 419)

ARGUMENT

1. THE TRIAL COURT ERRED WHEN IT ADMITTED, OVER THE DEFENDANT’S OBJECTION, THE OPINION OF WITNESS JENNIFER LEISER REGARDING THE IDENTIFICATION AND WEIGHT OF THE ALLEGED MARIJUANA.

1. THE TRIAL COURT ERRED WHEN IT ADMITTED, OVER THE DEFENDANT’S OBJECTION, STATE’S EXHIBITS 1, 11, 12, 13A, 13B, 14, AND 15, WHEN THE ADMISSION OF SAID EXHIBITS VIOLATED THE DEFENDANT’S RIGHT TO CONFRONTATION AND CROSS-EXAMINATION.

1. Standard of Review

The standard of review of a preserved evidentiary ruling is a question of law which the Court reviews de novo. State v. Bell, 164 N.C. App. 83, 87, 594 S.E.2d 824, 827 (2004). In addition, this Court uses a de novo standard of review when determining whether the admission of hearsay evidence violates the defendant’s Sixth Amendment right of confrontation and his State Constitutional right to confront pursuant to Article I, Section 19 of the North Carolina Constitution. State v. Delaney, 171 N.C.App. 141, 142, 613 S.E.2d 699, 700 (N.C.App. 2005).

1. The Expert Testimony of Witness Jennifer Leiser Concerning the Identification and Weight of the Alleged Marijuana was Impermissible Hearsay and Violated the Defendant’s Right to Confrontation and Cross-Examination Because the Analysis of the Alleged Marijuana was Performed by an Analyst Other Than the Testifying Expert.

Mr. Bailey contends that the trial court committed prejudicial error by allowing the prosecution to introduce hearsay evidence concerning the analysis of the alleged marijuana found during the search of Mr. Bailey’s automobile. Because the hearsay evidence concerning the analysis and the weighing of the alleged marijuana was used as substantive evidence to prove that Mr. Bailey possessed a felony amount of marijuana, the admission of the evidence was not only impermissible hearsay, but it also violated Mr. Bailey’s Sixth Amendment rights to confrontation and cross-examination, as well as his State Constitutional right to confrontation pursuant to Article I, Section 19 of the North Carolina Constitution.

At trial, Ms. Leiser, a Criminalist II in the chemistry Section of the Charlotte-Mecklenburg Police Department crime laboratory, testified as an expert witness regarding the results of an analysis of the alleged marijuana at issue in Mr. Bailey’s trial. Ms. Leiser was allowed to testify as an expert witness in forensic chemistry (T. p. 282) and provide her opinion as to both the identification and weight of the substance at issue in the trial even though the substance was analyzed by another chemist in the Charlotte-Mecklenburg Police Department crime laboratory.

During Mr. Bailey’s trial, Ms. Leiser was allowed to testify to Ms. deAnn Johnson’s analysis and weighing of the substance at issue. Ms. Leiser admitted that she did not perform any of the analysis on the alleged marijuana (T. pp. 320 – 321), that she was not present when the analysis was performed (T. p. 321), and was not present when the alleged marijuana was weighed. (T. p. 321)

Ms. Leiser only reviewed the work of deAnn Johnson, the analysts who performed that actual analysis and weighing of the alleged marijuana. (T. p. 290, 298) Over the objections of defense counsel, Mr. Leiser gave her expert opinion as to the identity and weight of the alleged marijuana. (T. p. 292 - 293) In addition, based on her testimony, State’s Exhibits 1, 11, 12, 13A, 13B, 14 and 15, all of which dwelled on the identity and weight of the alleged marijuana were allowed into evidence (T. p. 315) despite the fact that Ms. Leiser had performed none of the analysis or weighing of the substance at issue.

Hearsay is “a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. GEN. STAT. Sec. 8C-1, Rule 801(c). Unless allowed by statute or an applicable exception, hearsay statements are inadmissible. N.C. GEN. STAT. Sec. 8C-1, Rule 802. In this instance, Ms. Leiser testified to the composition and weight of the alleged marijuana even though she did not analyze and/or weigh the same. She simply reviewed the analysis of another chemist. Ms. Leiser’s testimony concerning her opinion that the substance was marijuana, as well the fact that the weight of the substance being 58.63 grams, was all based on the work of another anaylst. The trial court erred by admitting Ms. Johnson’s lab reports as well as Ms. Leiser’s testimony concerning the results of Ms. Johnson’s analysis because the prosecution used this hearsay information to prove that the defendant possessed over one and one-half ounces of marijuana and in violation of Rule 802 of the North Carolina Rules of Evidence.

In addition, the admission of Ms. Leiser’s testimony and the aforementioned exhibits violated Mr. Bailey’s rights to confrontation and cross-examination. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314, 77 USLW 4574 (2009), the State of Massachusetts presented certificates in order to show “prima facie evidence of the composition, quality, and net weight; of the analyzed substance.” The U.S. Supreme Court held that such certificates were testimonial in nature under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In the case before this Court, the State presented testimonial evidence by using Ms. Johnson’s lab reports and generated data, as well as proffered testimony from Ms. Leiser for the sole purpose of proving the identity and weight of the alleged substance in order to prove the elements of the crimes with which Mr. Bailey was charged.

Just as in Melendez-Diaz, the State introduced evidence from the written lab analysis of Ms. Johnson without Ms. Johnson’s presence at trial in violation of Mr. Bailey’s right to confront the witnesses against him.

Ms. Leiser’s testimony was based upon the lab report and data created by another analyst (Ms. Johnson) and was used to prove that Mr. Bailey in fact possessed an amount of marijuana greater than one and one-half ounces, for the purpose of showing that Mr. Bailey committed the crime of felony possession of marijuana. The information in Ms. Johnson’ lab report (State’s Exhibit 11, R. p. 31) and her underlying analysis was not only hearsay, but was “testimonial” under the principles of Crawford in that the lab report and the underlying analysis used to support the report was a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Id at 2532, citing Crawford. Because this evidence was testimonial in nature, Mr. Bailey’s Sixth Amendment right to confront witnesses was violated.

The North Carolina Supreme Court has specifically addressed the issue of expert testimony premised upon reports prepared by non-testifying experts in State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (2009). Utilizing the Melendez-Diaz holding, the North Carolina Supreme Court stated that the contents of lab reports were testimonial and that defendants have the right to confront the expert that had prepared the report. State v., Locklear, 363 N.C. at 452, 681 S.E.2d at 304-305.

1. The Issue of “Peer Review”

The trial court admitted the testimony of Ms. Leiser, and the aforementioned State’s Exhibits based upon the premise that Ms. Leiser had “conducted a technical or peer review of her own for preparation for trial.” (T. pp. 290-291 and 310-311) The trial court was erred in using “peer review” as a basis for the introduction of Ms. Leiser’s opinions and the State’s Exhibits.

In State v. Brennan, 692 S.E.2d 427, 2010 WL 1753339 (2010), this Court held that an expert’s “peer review” of drug testing procedures failed to qualify as an admissible independent opinion. The Court in Brennan stated:

It is obvious from the above-excerpted testimony that Agent Icard was merely reporting the results of other experts. We cannot conclude from this, as this Court did in Mobley, that ‘the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under North Carolina case law.’ Id. At ----, 684 S.E.2d at 512. On the contrary, as Agent Icard explained on cross-examination, her “review” consisted entirely of testifying in accordance with what the underlying report indicated. Although there is some indication that Agent Knott was unavailable due to illness, there is no indication in the record of any prior opportunity by the Defendant to cross-examine Agent Knott.

Just as in Brennan, the testifying expert in the case before this Court merely reported the results of another expert. She did not conduct any analysis on the suspected controlled substance (T. pp. 320 – 321), nor did she weigh the suspected controlled substance (T. p. 321) Further, there is no indication in the record of the case before this Court that the Defendant had any prior opportunity to cross-examine the actual analyst, deAnn Johnson.

This Court again addressed the issue of “peer review” in State v. Brewington, 693 S.E.2d 182 (2010). In Brewington, this Court noted that during the cross-examination of the testifying analyst, the analyst admitted that the analyst had no part in conducting any of the tests on the controlled substances and did not conduct any independent analysis of the substance. “She merely reviewed the findings of [the actual analyst] and testified that if [the actual analyst] followed the procedures, and if [the actual analyst] did not make any mistakes, and if [the actual analyst] did not deliberately falsify or alter the findings, the [the testifying analyst] ‘would have come to the same conclusion she did.” Brewington at 190.

This Court held that the State’s attempt to posture one analysts testimony as admissible “peer review” both at trial and appeal, under the scenario in Brewington, “was not persuasive.” Brewington at 190. This Court went on to hold that such a procedure “is not an independent expert opinion arising from the observation and analysis of raw data...and a defendant presented with such damning evidence can only hope to attack pure assumptions on whether procedures were properly followed during the forensic testing process.” Brewington at 192 and 192.

The facts of the case before this Court are nearly identical to the facts of Brennan and Brewington: Ms. Leiser did not conduct any of the tests to either identify or weigh the alleged marijuana and only testified from the reports and data written and gathered by Ms. Johnson. It bears noting that this was not a situation where the substance could not have been analyzed and tested again by Ms. Leiser to avoid a violation of the Defendant’s rights to confrontation and cross-examination. In fact, Ms. Leiser admitted that she could have performed her own analysis on the suspected marijuana prior to trial. (T. p. 323)

1. Prejudice

A violation of Mr. Bailey’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless. N.C. Gen. Stat. § 15A-1443; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), rehearing denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).

In the case before this Court, the violation of Mr. Bailey’s rights was not harmless beyond a reasonable doubt. Ms. Leiser’s testimony concerning the identity and weight of the controlled substances was used not only to prove that Mr. Bailey possessed marijuana, but that he possessed an amount of marijuana sufficient for him to be convicted of felony possession of marijuana (more than one and one-half ounces).

Without the testimony of Ms. Leiser, the State could not prove beyond a reasonable doubt that the defendant possessed marijuana and that the amount was sufficient for a felony conviction. Neither Officer Kossick nor Officer Roman were admitted as experts in forensic chemistry. As such, the State could not prove beyond a reasonable doubt that Mr. Bailey possessed marijuana, and that he possessed a felony amount of marijuana, without the expert testimony of Ms. Leiser.

In the event this Court finds that there was not a Constitutional violation, it remains that the trial court erred by allowing Ms. Leiser’s testimony, and admitting the State’s exhibits, into evidence since it was used to prove the truth of the matters asserted, that being that the suspected substance was marijuana and that it was of a felony amount. Ms. Leiser’s statements concerning the identity of the substance and the weight of the substance alleged to be marijuana was prejudicial to Mr. Bailey for the reasons stated above and “there is a reasonable possibility, that had the error in question not been committed,” a different result would have occurred in this case because there was no substantial proof as to the identity and the accurate weight of the substance. N.C. Gen. Stat. § 15A-1443(a).