Thursday, June 27, 2013

NC Supreme Court Criminal Decisions, June 27, 2013

Melendez-Diaz, eviscerated in North Carolina.

State v. Ortiz-Zape.  Holding: Witness testifying that a substance was cocaine based on her "independant analysis of testing performed by another analyst in her laboratory" did not violate the 6th Amendment (reversing COA's unpublished decision).

Reviewing all the lab notes and data from the testing instruments of the other person was enough, even though they were based entirely on testing done by someone else.

Two rules seem to emerge from this case:

1) Expert may testified to testing if he/she performed it or had some, even minor, first hand live-witnessing oversight/supervision at the time the testing was conducted.

 2) A qualified expert may provide an independent opinions based on out-of-court statements in certain contexts (not clearly deliniated by anyone), but never simply to repeat the out-of-court statements.

3) An expert can testify about machine-generated raw data without the presence of the person who pushed the buttons on the machine.

Hudson Dissents.

State v. Brent.COA reversed cocaine conviction based on Melendez-Diaz (in an unpublished decision).

Defendant never objected in the presence of the jury, thus this issue was not preserved. Reversed the COA. Even if he hadn't this was not error under Oritiz-Zape. The testifying expert reviewed three graphs produced by a machine from a sample, which she reviewed and independently concluded was cocaine. This did not violate the confrontation clause.

State v. Brewington. Reversing lower court decis

COA  Decision Post: State v. Brewington. Defendant found guilty of possessing cocaine. Challenge to expert testimony based on Melendez-Diaz grounds (that expert testified to opinions of non-testifying expert about the chemistry of the cocaine). SBI Agent identified the substance as cocaine based solely on testing conducted by a non-testifying agent. Under Melendez-Diaz, this violates the 6th Amendment right to confrontation.
The agent who testified clearly had not personally performed or observed any of the chemical tests she relied on in making her opinion. Nonetheless, under Ortiz-Zape, the witness presented an independent opinion based on her review of all the testing and non of the lab notes/etc. of the other experts were entered into evidence.

Hudson Dissents. 

State v. Craven. Affirmes COA on the Melendez-Diaz issue, relying on Ortiz-Zape, but finds it did not affect the conspiracy convictions, and reinstates those convictions.
COA Decision Post: State v. Craven. Defendant pleaded guilty to sale of cocaine and the court entered a prayer for judgment continued until the subsequent term. In the interim, defendant was convicted of new charges of selling and delivering cocaine. Defendant was sentenced to 16-20 months, running the new and the old charges together.

First, defendant makes a Melendez-Diaz argument that the SBI agent improperly testified about analyses conducted by other agents. There is a 4-part test to determine if the document embodying the analyses of another agent can be admitted:

(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’s report or analysis;

and (4) if the testifying expert summarized another non-testifying expert’s report or analysis, determine whether the admission of the document through another testifying expert is reversible error.

The expert basically just put on the analyses done by others and said he agreed with them. This was a confrontation violation. This error was not harmless, even though a lay witness said she had used cocaine for 20 years and this was cocaine. While this is admissible evidence, it does not have the same impact on the jury as a chemical analysis. As such, defendants sentences (in these 3 counts) are vacated.
 State v. Hough. Per curiam affirmance (3-3, so no precedential value).
COA Post Below: State v. Hough. No Melendez-Diaz error in allowing analyst to testify about analysis conducted by non-testifying expert where her opinion was based on her own independent review and confirmation of the results.
 State v. Hurt.   Remanded on same grounds as Ortiz-Zape.

COA Decision Post: State v. David Franklin Hurt. Caldwell County Appeal from 2d murder conviction. Defendant appeals aggravated sentencing based on jury's finding that the murder was especially heinous, atrocious, or cruel.

Held: Defendant has a right, under Blakely, to confront witnesses against him at a sentencing trial under the 6th Amendment. Applies to all sentencing proceedings where a jury makes a determination of facts that, if found, increase the defendant's sentence beyond the statutory maximum. Trial courts admission of hearsay during the aggravation phase constituted error.

Remand for new sentencing hearing.
State v. Williams.Another reversal based on Ortiz-Zape.

Beasley Dissents.

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