                  IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 533PA10

                               FILED 27 JUNE 2013

STATE OF NORTH CAROLINA

             v.

JARVIS LEON WILLIAMS



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous

decision of the Court of Appeals, 208 N.C. App. 422, 702 S.E.2d 233 (2010), finding

prejudicial error in a judgment entered on 1 September 2009 by Judge Calvin E.

Murphy in Superior Court, Mecklenburg County, and ordering that defendant

receive a new trial. Heard in the Supreme Court on 12 February 2013.


      Roy Cooper, Attorney General, by Amy Kunstling Irene and Daniel P. O’Brien,
      Assistant Attorneys General, for the State-appellant.

      Don Willey for defendant-appellee.


      PARKER, Chief Justice.


      The issue in this case is whether the Court of Appeals erred by granting

defendant a new trial on the basis that defendant’s Sixth Amendment

Confrontation Clause rights were violated.      For the reasons stated herein, the

decision of the Court of Appeals is reversed.

      Defendant was arrested following a brief investigation that resulted in the

discovery of cocaine in a flower pot near where defendant was standing. Defendant
                                 STATE V. WILLIAMS

                                 Opinion of the Court



was indicted for possession with intent to sell or deliver cocaine and attaining

habitual felon status.   The jury convicted defendant of the cocaine charge, and

defendant thereafter admitted his habitual felon status. The trial court entered

judgment sentencing defendant to 107 to 138 months of imprisonment.           At the

conclusion of the trial proceedings, defendant orally entered his notice of appeal to

the Court of Appeals.

      At trial the State’s evidence tended to show the following: On 2 April 2008,

Sergeant Brian Scharf of the Charlotte-Mecklenburg Police Department (CMPD)

received a telephone call from a confidential informant stating that a black male

wearing all black and having long dreadlocks was selling cocaine from the porch of

429 Heflin Street. The informant said the cocaine would be in a flower pot hanging

from the porch ceiling. Sergeant Scharf and Officer James Gilliland drove to the

reported location, where they observed defendant, who matched the description

provided by the informant. The officers also observed a flower pot hanging from the

porch ceiling. Sergeant Scharf asked defendant if defendant had been selling crack

cocaine, and defendant denied that he had been doing so. Both officers saw a clear

plastic bag sticking out of the flower pot. Based on Sergeant Scharf’s experience as

a narcotics officer, he knew that clear plastic bags are the predominant means of

packaging illegal narcotics. Sergeant Scharf handcuffed defendant, retrieved the

bag from the flower pot, and then observed inside the bag a substance that, based




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                                  Opinion of the Court



on his training and experience, he believed to be crack cocaine. Sergeant Scharf

also searched defendant, finding $195 in cash in his pocket.

      The officers transported defendant to the police station, where they

interviewed him after he waived his Miranda rights. Defendant said that a man

named Chris had left the crack cocaine there for him to sell and that he had sold

some that day. Sergeant Scharf prepared a written statement to that effect, which

defendant reviewed and signed. The written statement declared:

             The cocaine that officer Scharf found at 429 Heflin St was
             put there by a black male named “Chris.” He put it there
             to sell it. When I got there “Chris” told me the Cocaine
             was there so I could sell it for him until he got back. I sold
             about $30.00–40.00 worth today. The Cocaine was not
             mine. The Cocaine was in a clear plastic bag in a flower
             pot hanging from the porch ceiling.

      The State presented Ann Charlesworth of the CMPD Crime Laboratory as an

expert in forensic chemistry.       Charlesworth testified that the crime lab is

accredited. Charlesworth also testified to the crime lab’s standard practices and

procedures. Specifically, she testified to procedures regarding the chain of custody

of suspected controlled substances, the chemical analysis of suspected controlled

substances, the recording and reporting of chemical analysis results and

conclusions, and the peer review process to review the results and conclusions of the

chemical analysis.

       Charlesworth testified that after an analyst receives a substance to be

tested, the analyst subjects it to two rounds of testing: a preliminary test followed


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                                   Opinion of the Court



by a confirmatory test. The preliminary test is generally a “color test.” There are

different color tests for different controlled substances. A positive test result for a

color test designed for a specific controlled substance indicates that the tested

substance is likely to be the specific controlled substance for which the test is

designed.    Once a positive color test result is obtained, a confirmatory test is

conducted using a gas chromatograph mass spectrometer (GC Mass Spec). The data

from the GC Mass Spec would then be compared with a standard from the crime

lab’s library to determine if the substance is the substance suggested by the color

test.

        The crime lab’s procedures require analysts to record the results of their

analysis and their conclusions in a specific manner. The results of the color test are

manually entered into a Chemistry Drug Worksheet, and the machine-generated

results produced by the GC Mass Spec are printed. Analysts enter their conclusions

as to the identity of the tested substances in a lab report, which is used by “the

police and the attorneys.”      The Drug Chemistry Worksheet, the GC Mass Spec

printout, and the lab report are placed in a file that corresponds to the case at issue.

        The crime lab’s procedures also mandate peer review of an analyst’s results

and conclusions. Once an analyst has completed a file, the analyst transfers the file

to another analyst, who reviews the entire file to see if that analyst comes to the

same conclusion. The second analyst then initials and dates the file to indicate

concurrence with the results.


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                                 STATE V. WILLIAMS

                                  Opinion of the Court



      Charlesworth was asked to review for trial the file corresponding to the

substance seized by Sergeant Scharf. DeeAnne Johnson, a chemist who no longer

works for the crime lab, performed the analysis of the substance recovered from the

flower pot. Charlesworth did the same type of review that she would have done if

she had been the peer reviewer. The tests performed by Johnson were “the same

tests that [Charlesworth] and other experts in the field reasonably rely upon as to

forming an opinion as to the weight and nature of the substance tested.” After

Charlesworth described her review of the file, the prosecutor asked:

             [B]ased on your training and experience in the field of
             forensic chemistry and your course of your employment at
             CMPD and in Pennsylvania and your review of this case
             file, did you form your own expert opinion as to the
             substance that was present and the weight in this case?

Over defendant’s objection, Charlesworth declared, “The substance was cocaine and

it was 0.99 grams.”

      Next, the prosecutor moved to admit the Drug Chemistry Worksheet, the GC

Mass Spec printout, and the lab report into evidence “as illustrative of Ms.

Charlesworth’s opinion in this case.” Over defendant’s objection, the trial court

admitted the exhibits “for the purpose of illustrating the testimony of this witness

in establishing what she relied upon in formulating her own opinion about the

evidence in this case.” The trial court instructed the jury that it “may consider [the

exhibits] for that purpose, or those purposes, and only that purpose.”




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                                  STATE V. WILLIAMS

                                  Opinion of the Court



      Defendant testified on his own behalf. Defendant testified that on 2 April

2008 he went to 429 Heflin Street. Defendant stated he knew that drug selling,

prostitution, and gambling went on at that house. On the porch, defendant met a

black male who said his name was Chris. Defendant testified that Chris repeatedly

asked defendant to sell crack cocaine for him, but defendant refused each time.

Before Chris left the house, he told defendant that the drugs were in the flower pot,

gave defendant twenty dollars, and said, “[M]ake a sale for me until [I get] back.”

According to defendant, shortly after Chris left, a man pulled up in a truck asking

for Chris. Defendant told the man that Chris had left. Then defendant “got the

drugs” from the flower pot and gave the man the drugs in exchange for forty dollars.

Defendant testified that as soon as the man in the truck left, Sergeant Scharf and

Officer Gilliland pulled up to the house.       Defendant testified that while being

interviewed by Sergeant Scharf after waiving his Miranda rights, he said, “[T]he

cocaine in the flower pot wasn’t mine, it was a guy named Chris.” Defendant also

informed Sergeant Scharf that he “wasn’t intending on selling any cocaine that day,

and [he] was tricked by Chris.”

      As noted above, the jury convicted defendant of the cocaine charge, and

defendant thereafter admitted his habitual felon status. On appeal to the Court of

Appeals, defendant argued that Charlesworth’s testimony regarding the results of a

chemical analysis performed by Johnson violated his rights guaranteed by the

Confrontation Clause of the Sixth Amendment to the United States Constitution.


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                                 STATE V. WILLIAMS

                                  Opinion of the Court



Relying heavily on its analysis of the Confrontation Clause in State v. Brewington,

204 N.C. App. 68, 693 S.E.2d 182 (2010), rev’d, ___ N.C. ___, ___ S.E.2d ___ (2013)

(No.   235PA10), the unanimous court            below reasoned that    admission of

Charlesworth’s testimony was error. State v. Williams, 208 N.C. App. 422, 427, 702

S.E.2d 233, 237-38 (2010). Specifically, the Court of Appeals reasoned that because

“the report detailing the tests done by Johnson and then ‘peer reviewed’ and

testified about by Charlesworth is testimonial,” “nothing in the record support[s]

any conclusion that defendant was given the opportunity to cross-examine

Johnson,” and “Charlesworth’s testimony detailing her ‘peer review’ was merely a

summary of the underlying analysis done by Johnson,” admission of the testimony

at issue was error. Id. at 426-27, 702 S.E.2d at 236-38. The court below next

determined that the error was not harmless beyond a reasonable doubt and granted

defendant a new trial. Id. at 427-28, 702 S.E.2d at 238. The court reasoned that

without Charlesworth’s testimony as to the chemical composition of the substance

seized, the State did not meet its burden of “present[ing] evidence as to the chemical

makeup of the substance.” Id. at 428, 702 S.E.2d at 238 (citing, inter alia, State v.

Nabors, 207 N.C. App. 463, 471, 700 S.E.2d 153, 158 (2010), rev’d, 365 N.C. 306, 718

S.E.2d 623 (2011)). On 4 October 2012, this Court allowed the State’s petition for

discretionary review.

       Before this Court the State argues that the Court of Appeals erred by holding

that there was a Confrontation Clause violation since Charlesworth testified to her


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                                 STATE V. WILLIAMS

                                  Opinion of the Court



own opinion about the identity of the controlled substance based on the data and

report of another expert analyst and the report itself was admissible as the basis for

the testifying expert’s opinion. The State further argues that the Court of Appeals

erred in that any error was harmless beyond a reasonable doubt. We agree with the

State that even if admission of the testimony and exhibits at issue was error, any

error was harmless beyond a reasonable doubt. Accordingly, we reverse the Court

of Appeals without addressing whether defendant’s Sixth Amendment rights were

violated.

      “A violation of the defendant’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.G.S. § 15A-1443(b) (2011).

Defendant’s trial testimony was not that the substance was not cocaine, but rather

that “the cocaine in the flower pot wasn’t mine” and Chris had tricked him into

selling it. Because defendant testified in his own defense that the seized substance

was cocaine and that he had been selling it, any alleged error in admitting

Charlesworth’s testimony and the related exhibits was harmless beyond a

reasonable doubt. See State v. Nabors, 365 N.C. 306, 312-13, 718 S.E.2d 623, 627

(2011).

      For the reasons stated herein, the decision of the Court of Appeals is

reversed.


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                                  Opinion of the Court




      REVERSED.




      Justice BEASLEY dissenting.



      For the reasons stated in my dissent in State v. Brewington, ___ N.C. ___, ___

S.E.2d ___ (2013), I respectfully dissent. I would affirm the decision of the Court of

Appeals granting defendant a new trial. I would hold that, as prohibited by the

Confrontation Clause under Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct.

2705 (2011), the expert testimony in this case amounts to mere surrogate testimony

being used to explicitly introduce critical evidence of an element of the charged

offense, and that this constitutional violation was not harmless beyond a reasonable

doubt. The majority relies on State v. Nabors, 365 N.C. 306, 718 S.E.2d 623 (2011),

to hold that defendant’s use of the word “cocaine” alleviates any error presented by

the failure to offer a competent expert witness to confirm the identity of the

substance at issue. Nabors directly conflicts with the rulings in State v. Llamas-

Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009) (per curiam), and State v. Ward, 364

N.C. 133, 694 S.E.2d 738 (2010). As such, Nabors should be narrowly construed.

Contrary to the majority’s position, this case does not fall within the narrow bounds

of Nabors.

      This case is distinguishable from Nabors in several respects.        First, the


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                                 STATE V. WILLIAMS

                                BEASLEY, J., dissenting



standard of review in Nabors was different from that presented here. In Nabors

this Court reviewed for plain error. 365 N.C. at 311-13, 718 S.E.2d at 626-27.

Thus, the burden was on the defendant to prove that the jury probably would have

reached a different result absent the error. State v. Lawrence, 365 N.C. 506, 518,

723 S.E.2d 326, 334 (2012).       This case, however, requires review under the

harmless beyond a reasonable doubt standard.

             When violations of a defendant’s rights under the United
             States Constitution are alleged, harmless error review
             functions the same way in both federal and state courts:
             “[B]efore a federal constitutional error can be held
             harmless, the court must be able to declare a belief that it
             was harmless beyond a reasonable doubt.” In other
             words, an error under the United States Constitution will
             be held harmless if “the jury verdict would have been the
             same absent the error.” Under both the federal and state
             harmless error standards, the government bears the
             burden of showing that no prejudice resulted from the
             challenged federal constitutional error.

Id. at 513, 723 S.E.2d at 331 (alteration in original) (citations omitted). Thus, here

the State bears the burden to show that no harm resulted from the error. The

difference between these standards is marked and is determinative here.

      Second, Nabors involved an appeal from the trial court’s denial of defendant’s

motion to dismiss for insufficient evidence on the bases that the State failed to

provide chemical testing and that all identification was based on lay opinion

testimony by the officers. 365 N.C. at 310-11, 718 S.E.2d at 626-27. Part of this

review mandates that “both competent and incompetent evidence that is favorable



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                                 BEASLEY, J., dissenting



to the State . . . be considered by the trial court in ruling on a defendant’s motion to

dismiss.” Id. at 312, 718 S.E.2d at 627 (emphasis added) (citations omitted). By

contrast, the challenge here asserts a Confrontation Clause violation—the

deprevation of a fundamental right. We do not need to, and in fact should not,

consider incompetent evidence in determining whether defendant suffered any

harm as a result of this violation of his constitutional right to confrontation.

      Under the standard of review in Nabors, the Court held that the lay witness

testimony by defendant’s friend that the substance was cocaine was “an

independent basis for upholding the trial court’s denial of the motion.” Id. at 313,

718 S.E.2d at 627. While one might assume this to be the same as stating that it is

sufficient to provide lay witness testimony regarding the chemical identity of the

crack cocaine at issue here, the Court then directly knocked this assumption down

by declaring that it would not decide whether testing is required. Id. The Court in

Nabors found it unnecessary to do so precisely because the standard of review was

plain error: “Assuming arguendo that admission of the lay testimony was error,

defendant cannot satisfy his burden of showing plain error inasmuch as his own

evidence established that the substance sold was cocaine.” Id. Because this case

does not involve plain error review, motions to dismiss, or consideration of

incompetent evidence, this Court must declare whether chemical testing is

required. As I discuss in my dissent in Brewington, this declaration has already

been made by this Court in State v. Ward.


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                                 STATE V. WILLIAMS

                                BEASLEY, J., dissenting



      In State v. Ward this Court extended the requirement of chemical testing to

verify the identity of any alleged controlled substance. 364 N.C. at 143-44, 694

S.E.2d at 744-45.    While the facts in Ward specifically addressed tablets, the

language used to state the rule and the rationale behind the rule apply generally to

controlled substances governed by N.C.G.S. § 90-95. Id. Specifically, this Court

expressed concern regarding counterfeit substances, which are subject to a lesser

punishment by statute:

             By imposing criminal liability for actions related to
             counterfeit controlled substances, the legislature not only
             acknowledged that their very existence poses a threat to
             the health and well-being of citizens in our state, but that
             a scientific, chemical analysis must be employed to
             properly differentiate between the real and the
             counterfeit. . . . As such, a scientifically valid chemical
             analysis of alleged controlled substances is critical to
             properly enforcing the North Carolina Controlled
             Substances Act.

364 N.C. at 143-44, 694 S.E.2d at 745.

      To hold defendant accountable for his belief that the substance in question

was indeed cocaine directly nullifies the rationale presented in Ward that a

substance may be alleged to be either real or counterfeit, but in fact be the opposite.

Accordingly, defendant’s belief whether a substance is real or counterfeit is

irrelevant to the State’s burden. When the State is required to provide evidence of

chemical testing to verify the identity of a substance but fails to comply with the

Confrontation Clause, a defendant’s belief or assertion that the drug is real cannot,


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                                 STATE V. WILLIAMS

                                BEASLEY, J., dissenting



under the precedent of this Court, make the error harmless. The submission of

chemical testing through the proper expert’s testimony would determine the

severity of the defendant’s sentence irrespective of his belief regarding the chemical

identity of the substance.

      This finding that an error would not be harmless, of course, begs the question

of whether defendant’s Sixth Amendment right to confrontation was violated.

Consistent with my dissenting opinion in Brewington, I submit that it was. Just as

in Brewington, here the State presented a surrogate expert to testify conclusively

about which tests were actually performed, how they were actually performed, and

the results they actually yielded, despite having never examined the substance in

question herself.     Further, the opinion the surrogate expert purported to

independently convey depended upon visual observations not made by the surrogate

herself, predominantly that the substance was of a particular weight.            This

testimony directly violates the rule in Bullcoming. ___ U.S. at ___, 131 S. Ct. at

2710 (“The question presented is whether the Confrontation Clause permits the

prosecution to introduce a forensic laboratory report containing a testimonial

certification—made for the purpose of proving a particular fact—through the in-

court testimony of a scientist who did not sign the certification or perform or

observe the test reported in the certification. We hold that surrogate testimony of

that order does not meet the constitutional requirement.” (emphasis added)). In

contrast to Brewington, however, but precisely consistent with Bullcoming, here the

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                                  STATE V. WILLIAMS

                                 BEASLEY, J., dissenting



report of the testing analyst was actually admitted into evidence, although under

the pretense of serving as illustrative evidence of the surrogate expert’s

independent opinion. This is a most egregious violation of Bullcoming and of the

Confrontation Clause.     As discussed above, this violation could not be harmless

because without any scientifically valid evidence regarding the chemical identity of

the substance, the State is unable to show whether the substance in question was

real or counterfeit, thus making the State unable to prove that defendant was guilty

of the charged offense of felony possession of a controlled substance, as opposed to

the lesser offense of felony possession of a counterfeit substance.

      Lastly, this result does not conflict with Nabors. In Nabors this Court stated:


             While the State has the burden of proving every element
             of the charge beyond a reasonable doubt, when a defense
             witness's testimony characterizes a putative controlled
             substance as a controlled substance, the defendant cannot
             on appeal escape the consequences of the testimony in
             arguing that his motion to dismiss should have been
             allowed.

365 N.C. at 313, 718 S.E.2d at 627 (emphasis added) (citations omitted). There the

consequences of the testimony were that incompetent evidence would be used

against defendant and that the plain error standard would be applied. Here the

consequences of the testimony are that defendant believed the substance was

cocaine and that lay witness testimony was provided contending that the substance

was actually cocaine. Defendant cannot escape these consequences. But these



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                                 STATE V. WILLIAMS

                                BEASLEY, J., dissenting



consequences do not prove the element of possession of actual cocaine as required by

this Court’s precedent and enactments of the General Assembly.            Although,

defendant cannot escape that he assisted the State’s case, neither may the State

escape that it did not present competent evidence on an essential element of the

crime. Because the burden falls on the State here, and not on the defendant—as it

did in Nabors—this difference is sufficient to alter the outcome.




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