367 N.C. 186
N.C.2014Background
- Glenn Edward Whittington was arrested after a controlled buy of 16 pills; SBI lab later reported they were oxycodone totaling 4.3 grams.
- State indicted Whittington for trafficking by sale, delivery, and possession under N.C.G.S. § 90‑95(h)(4); State delivered pills to SBI and obtained a lab report.
- State served a pretrial "Notice of Intention to Introduce Evidence at Trial" invoking N.C.G.S. § 90‑95(g), stating a copy of lab reports "will be delivered upon request." No record that defendant requested or received a report pretrial.
- At trial a law‑enforcement investigator read the SBI lab report into the record; defendant objected on Confrontation Clause grounds (citing Melendez‑Diaz), and separately on chain‑of‑custody grounds. The court overruled the Confrontation objection and admitted the report.
- Court of Appeals reversed on the possession count (Count III), finding the State failed to prove defendant received the lab report as § 90‑95(g) requires; the Supreme Court granted discretionary review.
Issues
| Issue | State's Argument | Whittington's Argument | Held |
|---|---|---|---|
| Whether Melendez‑Diaz invalidates NC § 90‑95(g) notice‑and‑demand procedure | § 90‑95(g) remains valid after Melendez‑Diaz; defendant must timely object to preserve confrontation rights | Melendez‑Diaz requires live testimony of analyst; § 90‑95(g) no longer permits admitting reports without analyst | Court: Melendez‑Diaz did not invalidate § 90‑95(g); defendant must timely raise Confrontation objection under the statute |
| Whether State proved defendant waived Confrontation rights by providing a pretrial copy of the report as § 90‑95(g)(1) requires | State argued it provided sufficient notice and the statutory procedure shifted burden to defendant to object; trial record included notice form | Whittington argued on appeal that State did not show it provided the report copy as required, so no waiver occurred | Court: Issue not preserved — defendant’s trial objection did not challenge State’s compliance with § 90‑95(g)(1); appellate review waived |
| Whether admission of the lab report without the analyst’s testimony violated Confrontation Clause | Admission permissible if § 90‑95(g) requirements are met and defendant failed to timely object | Admission violated Confrontation Clause absent proof of waiver through compliance with § 90‑95(g) | Court: Admission proper as argued at trial; defendant’s constitutional objection (relying on Melendez‑Diaz) was overruled and no preserved claim about notice was made |
| Burden of proof regarding compliance with § 90‑95(g) at trial | Defendant must object timely; if objected, State should be prepared to show compliance but defendant must raise statutory noncompliance to preserve it | If defendant objects on Confrontation grounds, burden is on State to prove compliance with § 90‑95(g) to show waiver | Court: Defendant must raise the specific statutory noncompliance at trial to preserve that challenge; failure to do so waives the issue on appeal |
Key Cases Cited
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (holding defendants must be given opportunity to confront analysts; describing notice‑and‑demand statutes and that defendants bear burden to timely object)
- State v. Bunnell, 340 N.C. 74 (N.C. 1995) (presumption against waiver; State bears burden to show knowing and intelligent waiver)
- State v. Chapman, 359 N.C. 328 (N.C. 2005) (constitutional error not considered for first time on appeal)
- State v. King, 343 N.C. 29 (N.C. 1996) (theory tried in lower court controls appellate review)