                 IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 235PA10

                                  27 JUNE 2013

STATE OF NORTH CAROLINA

            v.

JOHN EDWARD BREWINGTON



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

decision of the Court of Appeals, 204 N.C. App. 68, 693 S.E.2d 182 (2010), finding

prejudicial error in a judgment entered on 13 February 2009 by Judge Arnold O.

Jones, II in Superior Court, Wayne County, and ordering that defendant receive a

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

      Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy
      Attorney General, and Daniel P. O’Brien, Assistant Attorney General, for the
      State-appellant.
      Anna S. Lucas for defendant-appellee.

      EDMUNDS, Justice.


      Defendant John Edward Brewington’s conviction for possession of cocaine

was reversed by the Court of Appeals on the grounds that his right to confront the

witnesses against him, guaranteed by the Sixth Amendment to the Constitution of

the United States, was violated.        Because we conclude that defendant’s

confrontation rights were adequately preserved, we reverse.
                                STATE V. BREWINGTON

                                   Opinion of the Court



      At about 10:15 p.m. on 18 January 2008, Goldsboro Police Officer James

Serlick observed defendant riding a bicycle on Potley Street. None of the lights or

reflectors legally required for riding after dark were on the bicycle, so the officer

stopped defendant and asked for identification.           When the officer further asked

defendant if he was carrying either drugs or a weapon, defendant gave Officer

Serlick consent to search his person.      During the ensuing pat-down, the officer

touched something that “felt like a rock” on the inside of defendant’s left leg. Officer

Serlick pulled defendant’s sock down and a napkin fell out. The officer opened the

napkin and saw “an offwhite rock-like substance” that he believed to be cocaine.

Officer Serlick seized the substance, then arrested defendant and transported him

to the magistrate’s office.   Defendant was indicted for possession of cocaine, in

violation of N.C.G.S. § 90-95(a)(3).


      At defendant’s trial, the State presented evidence to establish chain of

custody of the seized substance. Officer Serlick testified that he placed the rock-like

substance in a plastic bag, initialed it, added such routine information as the case

number, defendant’s name, the item number, and the date and time the item was

recovered, and then secured the plastic bag in an evidence locker. The material

subsequently was transported to the North Carolina State Bureau of Investigation

(SBI) laboratory, where it was analyzed by Assistant Supervisor in Charge Nancy

Gregory.   However, at trial, evidence of the identity of the material found in



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                                STATE V. BREWINGTON

                                  Opinion of the Court



defendant’s sock was presented through the testimony of SBI Special Agent

Kathleen Schell.


      Before Agent Schell reached the crux of her testimony as to the chemical

analysis of the substance, defense counsel objected and moved to exclude her

testimony on the grounds that Agent Schell “didn’t actually do the analysis in the

case,” and, as a result, defendant was “not able to cross-examine this person . . . .

because her opinion is not going to be based on an actual test done to the item of

evidence . . . , her opinion is going to be based solely on what some other person did

and wrote down in a report.” The trial court allowed an extensive voir dire of Agent

Schell, then denied defendant’s motion.


      Continuing her testimony before the jury, Agent Schell described how an

item submitted to the SBI laboratory is given a unique identification number and

how the progress of such an item is tracked. She identified Agent Nancy Gregory as

her supervisor and described Agent Gregory’s training and experience.           Agent

Schell then reported how preliminary color tests are performed on a substance,

followed by more specific tests tailored to the results of the color tests. She advised

that the chemist who does the testing prepares a report and that the data and

resulting report are reviewed by another SBI chemist, adding that her own duties

include conducting such reviews.       The record indicates that Agent Gregory’s

laboratory report was not admitted into evidence. Agent Schell’s direct testimony


                                          -3-
                               STATE V. BREWINGTON

                                  Opinion of the Court



concluded with the prosecutor asking whether she had formed an opinion, based

upon her review of the results of Agent Gregory’s testing, as to the identity of the

substance. Defendant again objected but his objection was overruled. Agent Schell

testified that, in her opinion, the substance was cocaine base. Defendant thereafter

cross-examined Agent Schell carefully and extensively, leaving no doubt that Agent

Schell did not personally perform or observe any of the tests she relied on in

forming her opinion.


      On appeal, defendant argued that his rights secured under the Confrontation

Clause of the Sixth Amendment were violated when the trial court permitted Agent

Schell to testify that the substance found on defendant was cocaine based solely on

Agent Gregory’s notes and lab report. Relying heavily on the Supreme Court of the

United States’ decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.

2527, 174 L. Ed. 2d 314 (2009), the Court of Appeals found that the admission of

Agent Schell’s testimony constituted “an expert utilizing data collected by another

person to form an independent opinion,” State v. Brewington, 204 N.C. App. 68, 77,

693 S.E.2d 182, 188 (2010), and determined that admission of the testimony

violated the Confrontation Clause, id. at 82-83, 693 S.E.2d at 191-92.


      The Court of Appeals noted that Agent Schell testified that she “ ‘would have

come to the same conclusion that [Agent Gregory] did,’ ” but only “if Agent Gregory

followed procedures” and “if [she] did not make any mistakes.” Id. at 80, 693 S.E.2d


                                          -4-
                               STATE V. BREWINGTON

                                  Opinion of the Court



at 190. The court continued that “it is precisely these ‘ifs’ that need to be explored

upon cross-examination to test the reliability of the evidence” and concluded that

permitting Agent Schell to testify about the composition of the substance tested,

and to identify it as cocaine, was error. Id. The Court of Appeals further found that

no other concrete evidence identified the substance as cocaine and concluded that

the admission of Agent Schell’s testimony was not harmless error. Accordingly, the

Court of Appeals ordered a new trial. Id. at 82-83, 693 S.E.2d at 192.


      We allowed the State’s petition for discretionary review and now reverse the

holding of the Court of Appeals. This Court has recently considered the scope of

protections provided by the Confrontation Clause of the Sixth Amendment in State

v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11). In Ortiz-Zape, after

conducting an exhaustive review of current Confrontation Clause jurisprudence, we

determined that “when an expert gives an opinion, the opinion is the substantive

evidence and the expert is the witness whom the defendant has the right to

confront.” Id. at ___, ___ S.E.2d at ___. In addition, we stated that “admission of an

expert’s independent opinion based on otherwise inadmissible facts or data ‘of a

type reasonably relied upon by experts in the particular field’ does not violate the

Confrontation Clause so long as the defendant has the opportunity to cross-examine

the expert.” Id. at ___, ___ S.E.2d at ___. Here, Agent Gregory’s lab notes were not

admitted into evidence.    Instead, as in Ortiz-Zape, Agent Schell presented an

independent opinion formed as a result of her own analysis, not mere surrogate

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                                   Opinion of the Court



testimony. Id. at ___, ___ S.E.2d at ___. Defendant was able to conduct a vigorous

and searching cross-examination that exposed the basis of, and any weaknesses in,

Agent Schell’s opinion. Accordingly, we conclude that defendant’s Confrontation

Clause rights were not violated.


      The decision of the Court of Appeals is reversed.

      REVERSED.



      Justice HUDSON dissenting.



      Because the majority here relies entirely on what I see as the flawed analysis

in State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013) (329PA11), I will not

repeat the discussion from my dissenting opinion there. I write specifically to draw

attention to the ways in which the majority here has gone even farther astray than

in Ortiz-Zape.

      In Ortiz-Zape Agent Ray described her review of the testing analyst’s work.

According to the majority’s opinion, “Ray compared the machine-produced graph to

the data from the lab’s sample library and concluded that the substance was

cocaine.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. Although it is clear from

the testimony that Ray merely gleaned the conclusion from the report (She

admitted that “I can only say according to the worksheet.”), she was asked, “What is

your independent expert opinion?” and answered, “My conclusion was that the

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                               STATE V. BREWINGTON

                               HUDSON, J., dissenting



substance was cocaine.” Id. at ___, ___ S.E.2d at ___. Here, by contrast, Agent

Schell was not asked and made no attempt to characterize her testimony as an

“independent expert opinion.” Rather, she was asked if she had “reviewed . . . the

results of the examinations” performed by the testing analyst and if she had “also

reviewed Agent Gregory’s conclusion[.]” She testified that “[b]ased upon all the

data that [Agent Gregory] obtained from the analysis of that particular item . . . I

would have come to the same conclusion that she did.” (Emphasis added.) This

testimony is problematic.

      As with every other Confrontation Clause case we decide today, a central

question is whether the analyst’s opinion is independent or not. The independence

of the testifying expert’s opinion becomes crucial when, as here, the lab report

underlying that opinion is testimonial and the analyst who prepared the report did

not testify. Under these circumstances, the report and its conclusions are usually

inadmissible under the Confrontation Clause. A truly independent expert opinion

may serve as evidence in the case, while an opinion based solely on review of and

agreement with the inadmissible report is constitutionally infirm.     Here, Agent

Schell did nothing more than review Agent Gregory’s notes and results and agree

with her conclusion. Agent Schell’s opinion was entirely based on another’s work

and notes, and involved no independent analysis whatsoever.

      Moreover, while Agent Ray in Ortiz-Zape avoided reference to the original

analyst’s conclusions, Agent Schell actually introduced through her testimony


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                                STATE V. BREWINGTON

                                HUDSON, J., dissenting



Agent Gregory’s conclusion from the lab report—the very conclusion that the trial

court had explicitly ruled was inadmissible without testimony from Agent Gregory.

Agent Schell testified that she “[came] to the same conclusion that [Agent Gregory]

did,” and then reported to the jury that conclusion: that the substance was 0.1

grams of cocaine base. In so testifying, Agent Schell informed the jury of the absent

analyst’s testimonial conclusion and thereby acted as a surrogate rather than an

independent witness. This directly violates the rule in Bullcoming, in that Agent

Gregory, not Agent Schell, should have been made available for cross-examination

to satisfy the Confrontation Clause. “[S]urrogate testimony . . . could not convey

what [the certifying analyst] knew or observed about the events this certification

concerned, i.e., the particular test and testing process he employed. Nor could such

surrogate testimony expose any lapses or lies on the certifying analyst’s part.”

Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2715 (2011) (footnote

omitted).

      Finally, the majority in Ortiz-Zape purports to find independent state law

grounds to uphold the conviction, claiming that any possible constitutional error

was harmless in light of other evidence establishing the chemical identity of the

substance. Even if that analysis were correct—and it is not—no such escape valve

exists in this case. Here, the officer testified on direct examination that he arrested

defendant because he observed something he “believed” to be crack cocaine fall out

of defendant’s sock during a pat-down and that he took “the cocaine” into evidence.


                                          -8-
                               STATE V. BREWINGTON

                               HUDSON, J., dissenting



Even if visual identification of crack cocaine by a layperson were permissible—a

question this Court has not addressed, though the Court of Appeals has consistently

ruled that it is not—such visual identification could hardly be considered

“overwhelming evidence” of guilt sufficient to rebut the strong presumption that

constitutional error is prejudicial. See State v. Autry, 321 N.C. 392, 399-400, 364

S.E.2d 341, 346 (1988). I would hold that the State has failed to prove harmless

error beyond a reasonable doubt.

      Through this and the other opinions released today, the majority has declined

to follow the guidance of the U.S. Supreme Court’s recent Sixth Amendment

opinions, from Crawford through Williams, and has thus failed to protect a

defendant’s right to confront witnesses against him. The majority asserted in Ortiz-

Zape, and again here, that “when an expert gives an opinion, the opinion is the

substantive evidence and the expert is the witness whom the defendant has the

right to confront.”   This statement completely ignores the Supreme Court’s

explanations of the scope of the Sixth Amendment’s Confrontation Clause. Indeed,

if that statement were law, any expert could give an opinion based on any outside

inadmissible evidence, no matter how clearly testimonial or pointedly designed to

prove an element of the State’s case, without running afoul of the Confrontation

Clause.   This is precisely the type of problem that the Supreme Court has

repeatedly addressed since Crawford, and most recently in Williams. The majority

may disagree with the rulings of the United States Supreme Court, but we are


                                        -9-
                               STATE V. BREWINGTON

                                HUDSON, J., dissenting



nonetheless bound by them, as we are bound by the Constitution of the United

States. Because in my view this decision, as that in Ortiz-Zape, is inconsistent with

this Supreme Court jurisprudence, I must respectfully dissent.



      Chief Justice PARKER joins in this dissenting opinion.




      Justice BEASLEY dissenting.



      Because defendant’s right to confront the witnesses against him as

guaranteed by the Sixth Amendment to the Constitution of the United States was

violated, I respectfully dissent. The majority’s rule allowing a substitute expert to

provide the sole evidence of a critical element of the charged offense through an

“independent opinion” diminishes our Confrontation Clause analysis. Instead, I

would examine whether the information offered is critical to the State’s case so as to

determine its true and actual purpose and thus, whether the Confrontation Clause

was violated.

      The following facts are necessary for a proper decision in this case. At trial,

Agent Schell testified that Agent Gregory is her supervisor. She then testified as to

her knowledge of Agent Gregory’s experience and training, in addition to her own.

Agent Schell then outlined the general testing procedure for determining whether a


                                         -10-
                                  STATE V. BREWINGTON
                                  BEASLEY, J., dissenting

substance is cocaine. She described the security measures in place to track the

reports that are produced and ensure they are not changed.             The State next

produced the sample sent to the lab for testing and the envelope in which it was

returned to law enforcement.       Referring to Agent Gregory’s notes, Agent Schell

testified to when testing was performed and what kinds of tests were performed,

describing the testing procedure and reason for each test. The first test described

was a color test:

             Q. And concerning this particular sample, can you just
             explain first the first color test, what kind of test that was
             and how it was performed?

             ....

             Q. And from the notes that you retrieved were you able to
             determine what the result was of this particular color
             test?

             A. In this particular test it did not turn any color.

Agent Schell testified that the failure to change color is a negative result, indicating

particular chemicals are not present. She then explained that a second color test

was performed, testifying as to how one typically performs it and what it indicates.

             Q. And when you reviewed this particular case, did you
             see the results of this test?

             A. I did.

             Q. And what was the result of that test?

             A. It turned blue.

Again, she testified as to the results of the next test:


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                               STATE V. BREWINGTON
                               BEASLEY, J., dissenting

            Q. And based on your review of the lab report, were you
            able to determine what the result was of this particular
            test?

            A. Yes, crosses were obtained. Those specific crosses were
            obtained.

She testified that this indicates the substance is cocaine. Yet again, Agent Schell

testified as to the last test: although this time, the question asked and her

testimony spoke more directly to the specific process employed:

            Q. And was any other test performed then?

            A. A more specific instrumental test was performed.

            Q. Can you describe how that test was performed?

            ....

            Q. And in this particular case did you review the results
            of that particular test?

            A. I did.

            Q. And what were the results?

            A. In this case the graph produced, there was a mixture of
            cocaine base and bicarbonate, which is just baking soda.
            So further tests had to be conducted.

            ....

            Q. And what happened when that was done?

            A. A graph was produced using that same instrument and
            it was a clean graph of just cocaine base.

            Q. Now during your tests—during your explanation of the
            tests . . . ?




                                        -12-
                                STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

Agent Schell then testified that she reviewed the tests performed and the results

obtained and provided her opinion:

             A. Based upon all the data that [Agent Gregory] obtained
             from the analysis of that particular item, State’s Exhibit
             1B, I would have come to the same conclusion that she
             did.

             Q. And what is your opinion as to the identity of the
             substance that was submitted as State’s Exhibit 1B?

                    [objection/overruled]

             ....

             A. State’s Exhibit 1B is the Schedule II controlled
             substance cocaine base. It had a weight of 0.1 gram.

      On cross-examination Agent Schell testified that she did not personally

perform the tests, as noted by the majority. Most significantly, defense counsel

asked, “And they sent you here to testify from that person’s notes who actually did

the test; is that right?” to which Agent Schell responded, “That is correct.”

      Based on these facts and the Confrontation Clause precedent that is binding

on this Court, I would hold that it is a violation of the Confrontation Clause to offer

a substitute analyst’s opinion on the identity of a controlled substance when that

opinion relies upon testing performed by another analyst and seeks to serve as

evidence or proof of a critical element of the offense, though purportedly not offered

for the truth of the matter asserted. I would hold it is a further violation to admit

the report of the testing analyst as the basis for that expert opinion.

      The Confrontation Clause mandates that defendants have the right to ensure


                                            -13-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

that any evidence, let alone essential evidence, be vulnerable to its shortcomings

and exposed for any falsities that underlie it. See U.S. Const. amend. VI; Crawford

v. Washington, 541 U.S. 36, 61-62 (2004). When the report at issue, entered into

evidence or not, addresses a critical element of the offense charged, it inherently

operates “against” the defendant, and any person responsible for authoring that

evidence becomes a witness against him. See Melendez-Diaz v. Massachusetts, 557

U.S. 305, 311 (2009) (“[U]nder our decision in Crawford the analysts’ affidavits were

testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth

Amendment.”). In these cases the very nature of the details of the lab report go

beyond testimonial evidence; these details are essential evidence required by

statute and are thus valuable for the truth of the matter asserted. Consequently,

when the truth of the matter asserted in a lab report is critical to the State’s case,

and not merely evidence to bolster the State’s case, any attempt to reveal the

substance of that report, regardless of the stated purpose, without making its

author available for cross-examination necessarily violates the defendant’s right to

confront witnesses against him. See Bullcoming v. New Mexico, ___ U.S. ___, ___,

131 S. Ct. 2705, 2710 (2011) (“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


                                         -14-
                                STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

added)); Melendez-Diaz, 557 U.S. at 311 fn. 1 (“It is up to the prosecution to decide

what steps in the chain of custody are so crucial as to require evidence; but what

testimony is introduced must . . . be introduced live.”). It is not sufficient to only

permit the defendant to expose the inadequacies in the testifying expert’s opinion,

for this fails to address concerns regarding the critical evidence itself. In fact there

will likely not be any inadequacies to expose in the testifying expert’s opinion when

the opinion is merely recitation of factual results obtained from the tests of another.

      The rule and principles that I set forth above are consistent with the decision

of the United States Supreme Court in Bullcoming:

             Principal evidence against Bullcoming was a forensic
             laboratory report certifying that Bullcoming’s blood-
             alcohol concentration was well above the threshold for
             aggravated DWI. At trial, the prosecution did not call as
             a witness the analyst who signed the certification.
             Instead, the State called another analyst who was
             familiar with the laboratory’s testing procedures, but had
             neither participated in nor observed the test on
             Bullcoming’s blood sample.
                    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. The accused’s right is to be
             confronted with the analyst who made the certification,
             unless that analyst is unavailable at trial, and the
             accused had an opportunity, pretrial, to cross-examine
             that particular scientist.

Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2709-10. The facts presented to this Court



                                          -15-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

today fall squarely under the ruling in Bullcoming.

      Just as in Bullcoming, here the principal evidence against defendant was

that which the State submitted through the testifying expert.       The evidence at

issue—a substance identified as a controlled substance—is most assuredly critical

to the State’s case: without it a conviction is not statutorily possible. The State

made no showing that the testing analyst was unavailable, and defendant did not

have a prior opportunity to cross-examine the testing analyst. Because the evidence

at issue is directly prohibited by Bullcoming and is central to defendant’s

conviction, a violation of the Confrontation Clause occurred, and the violation was

not harmless beyond a reasonable doubt.

      The majority in State v. Ortiz-Zape, ___ N.C. ___, ___ S.E.2d ___ (2013)

(329PA11), upon which the majority here relies, held that the “admission of an

expert’s independent opinion based on otherwise inadmissible facts or data ‘of a

type reasonably relied upon by experts in the particular field’ does not violate the

Confrontation Clause so long as the defendant has the opportunity to cross-examine

the expert.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. In this case the majority

determines that the expert opinion was independent and the underlying

information relied upon was not offered for the truth of the matter asserted. This

holding contradicts the United States Constitution, United States Supreme Court

precedent, and this Court’s precedent.

      To permit independent opinion testimony on a critical element of the offense

when that opinion is based on evidence presented at trial “not for the truth of the


                                         -16-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

matter asserted” is to permit the North Carolina Rules of Evidence to preempt the

Confrontation Clause. Rules 703 and 705 of the North Carolina Rules of Evidence

generally allow expert testimony in the form of an opinion, including provision of

the information reasonably relied upon to reach the expert opinion. But these Rules

are entirely without effect when they contradict the Confrontation Clause. The

Supremacy Clause of the United States Constitution has long required, as

recognized by this Court on numerous occasions, such a hierarchy of authority:

             This constitution, and the laws of the United States which
             shall be made in pursuance thereof, and all treaties made,
             or which shall be made, under the authority of the United
             States, shall be the supreme law of the land; and the
             judges in every state shall be bound thereby, any thing in
             the constitution or laws of any state to the contrary
             notwithstanding.

U.S. Const. art. VI, cl. 2; Stephenson v. Bartlett, 355 N.C. 354, 369, 562 S.E.2d 377,

388 (2002) (“When federal law preempts state law under the Supremacy Clause, it

renders the state law invalid and without effect.”). In sum, the majority’s opinion

bypasses the Confrontation Clause by using the North Carolina Rules of Evidence;

such an outcome is impermissible under the Supremacy Clause.

      In Crawford the United States Supreme Court held that rules of evidence

cannot be used to escape the Confrontation Clause:

                   Where testimonial statements are involved, we do
             not think the Framers meant to leave the Sixth
             Amendment’s protection to the vagaries of the rules of
             evidence, much less to amorphous notions of “reliability.”
             Certainly none of the authorities discussed above
             acknowledges any general reliability exception to the
             common-law rule. Admitting statements deemed reliable


                                         -17-
                                STATE V. BREWINGTON
                                  BEASLEY, J., dissenting

             by a judge is fundamentally at odds with the right of
             confrontation. To be sure, the Clause’s ultimate goal is to
             ensure reliability of evidence, but it is a procedural rather
             than a substantive guarantee. It commands, not that
             evidence be reliable, but that reliability be assessed in a
             particular manner: by testing in the crucible of cross-
             examination. The Clause thus reflects a judgment, not
             only about the desirability of reliable evidence (a point on
             which there could be little dissent), but about how
             reliability can best be determined.

541 U.S. at 61 (emphasis added) (citations omitted) (overruling its prior decision in

Ohio v. Roberts, 448 U.S. 56 (1980), which permitted testimonial evidence to be

admitted so long as it was deemed reliable, regardless of whether there was an

opportunity for confrontation).     Thus, not only did the Court hold that rules of

evidence are secondary to the Confrontation Clause, but the Court expressed that

the Confrontation Clause is concerned not just with whether the information was

reliable, but with whether the information can be determined to be truthful in open

court. The only way to make that determination is to confront the individual from

whom the information originated.

      Here the majority relies on the North Carolina Rules of Evidence to admit

evidence about the identity of a chemical substance on the grounds that “basis

information” is admissible when an expert lays the foundation that the information

on which she relied is the same as that on which others in her field would rely in

forming an opinion on the identity of the substance. The first problem with this

rationale is that the majority focuses on whether the information was reliably

obtained and reliably used, or used in a reliable and common manner.            This



                                           -18-
                                 STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

question is not among the concerns raised in Crawford that serve as the basis for

the Court’s application of the Confrontation Clause; instead, this question directly

aligns with the concerns of Ohio v. Roberts that Crawford overruled.            See id.

Reliability of this kind is an evidentiary question.       The Confrontation Clause

addresses a procedural question: whether the defendant has the opportunity to

determine, in front of the jury, if the information relied upon is reliable at all or is

in fact a lie.   See id.; see also Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2715

(“[S]urrogate testimony of the kind [the testifying expert] was equipped to give

could not convey what [the testing analyst] knew or observed about the events his

certification concerned, i.e., the particular test and testing process he employed.

Nor could such surrogate testimony expose any lapses or lies on the certifying

analyst’s part.” (footnote omitted)).

      Our Court has previously recognized this procedural concern. State v. Ward,

364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010) (“The practical effect of the Melendez-

Diaz ruling is that through cross-examination more light is being shed on the

procedures expert witnesses use to support their testimony. In some instances,

when practices are illuminated ‘in the crucible of cross-examination,’ their

shortcomings become apparent.” (citation omitted)); id. at 156, 694 S.E.2d at 752

(Newby, J., dissenting) (“The Confrontation Clause is a ‘procedural . . . guarantee.’

Those accused of criminal offenses are entitled to cross-examine the witnesses

against them.” (alteration in original) (internal citation omitted)). Furthermore, in

cases such as this, the ability to cross-examine the testifying expert does not


                                          -19-
                                 STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

adequately address the procedural concern at issue: whether the testing analyst

performed the tests correctly. See Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2716

(“[T]he Clause does not tolerate dispensing with confrontation simply because the

court believes that questioning one witness about another’s testimonial statements

provides a fair enough opportunity for cross-examination.”). The likelihood of a

procedural violation becomes especially important when the evidence or information

in question goes to a critical element of the offense.

      It is true that an expert would rely upon the tests performed by the testing

analyst, as relied on here by Agent Schell, to show the identity of a substance.

These tests comply with the generally accepted scientific methods of proving that a

substance is indeed an illicit drug. But this truth addresses an evidentiary question

of reliability and not the procedural one at issue in Confrontation Clause analysis.

With respect to the procedural concern, the testifying expert cannot verify that no

mistakes were made in the testing or that the results generated by the testing

analyst were not based on false information, error, or lies. This information cannot

be ascertained without the right to confront the testing expert.      It is precisely

because of these lapses in procedure that the Confrontation Clause commands that

the State present the testing analyst to testify. Because the State did not present

such a witness in this case, it violated defendant’s Sixth Amendment rights.

      While the majority here, relying on Ortiz-Zape, contends that Bullcoming is

distinguishable because the expert here is not a surrogate but is testifying to her

own “independent” opinion about the reports, Bullcoming is directly on point with


                                          -20-
                                STATE V. BREWINGTON
                                BEASLEY, J., dissenting

this case. Nothing in Agent Schell’s opinion is “independent”; in fact, the veracity of

Agent Schell’s testimony is dependent on the validity and accuracy of Agent

Gregory’s testing methods. If Agent Gregory’s testing was faulty, Agent Schell’s

testimony is inaccurate.    Thus, without Agent Gregory’s testimony, there is no

reliable way to determine that the identity of the substance to which Agent Schell is

testifying is accurate.    The United States Supreme Court provided a very

appropriate visual in Bullcoming that describes exactly what the State is

attempting to do here and very clearly precludes it:

             Most witnesses, after all, testify to their observations of
             factual conditions or events, e.g., “the light was green,”
             “the hour was noon.” Such witnesses may record, on the
             spot, what they observed.         Suppose a police report
             recorded an objective fact—Bullcoming’s counsel posited
             the address above the front door of a house or the read-out
             of a radar gun. Could an officer other than the one who
             saw the number on the house or gun present the
             information in court—so long as that officer was equipped
             to testify about any technology the observing officer
             deployed and the police department’s standard operating
             procedures? As our precedent makes plain, the answer is
             emphatically “No.” See Davis v. Washington, 547 U.S.
             813, 826, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)
             (Confrontation Clause may not be “evaded by having a
             note-taking police[ officer] recite the . . . testimony of the
             declarant” (emphasis deleted)); Melendez-Diaz, 557 U.S.,
             at ___, 129 S.Ct., at 2546 (KENNEDY, J., dissenting)
             (“The Court made clear in Davis that it will not permit
             the testimonial statement of one witness to enter into
             evidence through the in-court testimony of a second.”).

Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2714-15 (alterations in original) (internal

citation omitted).




                                         -21-
                                STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

      Here, much like the radar gun hypothetical, Agent Schell is merely testifying

to the observations of another witness. Bullcoming directly forbids this. Id. Agent

Schell even admits on cross-examination to such a recitation of Agent Gregory’s

notes. In fact, the majority of Agent Schell’s testimony recites the recordation of

visual observations made by Agent Gregory, exactly like the Supreme Court’s radar

gun example. She testified with respect to the color tests: “In this particular test it

did not turn any color,” and, “It turned blue.” Again, Agent Schell testified: “Yes,

crosses were obtained. Those specific crosses were obtained.” These are visual

observations. There is no difference between this testimony and testifying, “It read

fifty-five miles per hour,” with respect to an officer’s notes about what he saw on the

radar gun. The only way to know the accuracy of the result of these tests is to

observe them. The same logic applies to the weight of the substance: “It had a

weight of 0.1 gram.”      Agent Schell could not know this with any sense of

“independent” knowledge unless she personally verified that the scales were

calibrated, personally executed the testing protocol properly, and observed the

weight on the scale itself. In fact, the State’s phrasing of the questions to Agent

Schell indicates a request for exact recitation of Agent Gregory’s notes and visual

observations: “And from the notes that you retrieved were you able to determine

what the result was of this particular color test?”; “[W]ere you able to determine

what the result was of this particular test?”; “[D]id you see the results of this test?”

(Emphases added.)      This testimony directly violates the rule in Bullcoming.

Whether referred to as an independent opinion or a peer review, testimony


                                          -22-
                                 STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

regarding these matters could only be based on the analyst’s actual observance of a

factual and visual occurrence.

      When a jury is capable of drawing the same conclusions as the substitute

expert if given the same information (i.e., the report), this is indicative that the

expert is merely parroting the testing analyst’s results.      Here if the jury were

handed the report that stated the sample “turned blue” and told that blue indicated

the presence of cocaine, a jury would conclude that the sample was cocaine. No

expert knowledge is necessary and could not possibly produce an “independent”

opinion outside that provided in the report. We must not create a back door to

evade the Confrontation Clause by merely changing the diction from “surrogate” to

“independent opinion.”

      Furthermore, there is no difference between handwritten notes to document

an officer’s observation of radar gun results and machine-produced data to

document the results of a chemical test prepared and set up by a live person. Both

leave room for falsification, entry error, sample error, or any number of other errors.

The majority in Ortiz-Zape declares that machine-generated results may not

operate as a witness against a defendant and thus are impervious to the

Confrontation Clause:

             Because machine-generated raw data, “if truly machine-
             generated,” are not a statement by a person, they are
             “neither hearsay nor testimonial.”       We note that
             “representations[] relating to past events and human
             actions not revealed in raw, machine-produced data” may
             not be admitted through “surrogate testimony.”
             Accordingly, consistent with the Confrontation Clause, if


                                          -23-
                                STATE V. BREWINGTON
                                BEASLEY, J., dissenting

             “of a type reasonably relied upon by experts in the
             particular field,” raw data generated by a machine may be
             admitted for the purpose of showing the basis of an
             expert’s opinion.1
Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___ (internal citations omitted). The same

majority reiterates this conclusion in State v. Brent, ___ N.C. ___, ___, ___ S.E.2d

___, ___ (2013) (“Thus, machine-generated raw data, if of a type reasonably relied

upon by experts in the field, may be admitted to show the basis of an expert’s

opinion.”). Yet, such data serves as a receipt of human action the same way a note

does.

        In fact, the majority’s opinions completely obscure the very safeguard the

majority’s own rule regarding such machine-generated data puts in place: the

concerns of the Confrontation Clause are alleviated only when the data are “truly

machine-generated.” Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. It is precisely

that limitation that recognizes the procedural concern of the Confrontation Clause.

Because the majority ignores this limitation, as is apparent by its lack of analysis in


        This assertion grows out of the majority’s reference to Justice Sotomayor’s
        1

concurring opinion in Bullcoming, which notes that Bullcoming did not present a
question of an independent opinion or reliance on results that were purely machine-
generated. Id. at ___, 131 S. Ct. at 2722 (Sotomayor, J., concurring). Such a
reference provides no support to the majority’s position. This Court is not bound by
the dicta within a concurring opinion of a single Justice of the Supreme Court.
Further, the plurality opinion in Williams, authored by Justice Alito, made the
same attempt to distinguish its case from Bullcoming by using Justice Sotomayor’s
observation. Justice Alito declared, “We now confront that question.” Williams, ___
U.S. at ___, 132 S. Ct. at 2233. Yet, Justice Sotomayor joined Justice Kagan in the
dissent in Williams, declaring that a Confrontation Clause violation had occurred.
See id. at ___, 132 S. Ct. at 2264-65 (Kagan, J., dissenting). Thus, while Justice
Sotomayor may have observed that the question would be different when it involved
an “independent” opinion or machine-generated results, she declared that the
answer is the same.

                                         -24-
                                STATE V. BREWINGTON
                                BEASLEY, J., dissenting

Ortiz-Zape and in Brent, the majority obscures the fact that the Confrontation

Clause necessarily applies here. The Supreme Court made clear in Crawford that

reliability (an evidentiary concern) does not preclude the fact that the concern of the

Confrontation Clause (a procedural one) may still be present. See Crawford, 541

U.S. at 61. The Confrontation Clause is not concerned with whether the machine

itself reliably produced the results (the evidentiary concern); it is concerned with

whether the testing analyst actually followed a reliable procedure in order to allow

the machine to produce a reliable result (the procedural concern).

      Here the majority concludes that the expert opinion was “independent” and,

by way of reference to the majority opinion in Ortiz-Zape, that the report was not

used for the truth of the matter asserted because it was only used to support this

“independent opinion” of a qualified expert. It is necessary to note that the majority

acknowledges that without qualifying as “basis information” for the expert’s

opinion, the information is “otherwise inadmissible.” Brewington, ___ N.C. at ___,

___ S.E.2d at ___; see also Ortiz-Zape, ___ N.C. at ___, ___ S.E.2d at ___. This

inadmissibility stems directly from the fact that the evidence violates the

Confrontation Clause if it is used for the truth of the matter asserted. Thus, it is

necessary to determine whether the report was indeed used for the truth of the

matter asserted. This determination is informed by the critical role the report plays

in the State’s case and by the testimony.

      In State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009) (per

curiam), this Court adopted the dissenting opinion from the Court of Appeals


                                         -25-
                                STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

concluding that chemical testing was required to identify a substance as powder

cocaine. Id. In Ward this Court extended that rule to cover pills requiring “very

technical and specific chemical designation[s]” that “imply the necessity of

performing a chemical analysis to accurately identify controlled substances.” Ward,

364 N.C. at 143, 694 S.E.2d at 744 (majority opinion) (alterations in original)

(citations and internal quotation marks omitted). Further,

             [b]y 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.

Id. at 143-44, 694 S.E.2d at 745. Thus, this Court has held that chemical testing is

required to establish the identity of any alleged controlled substance and that such

testing must be “scientifically valid.” Id. The State did not introduce any such

substantive evidence of chemical testing; thus, the Confrontation Clause was

violated.

      In addition to conflicting with the precedent of this Court, the majority’s

opinion, through the majority opinion in Ortiz-Zape, relies on case law that is

without effect or weight here. First among these is the United States Supreme

Court’s recent decision in Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221 (2012).

      In Williams the Supreme Court failed to reach a majority opinion. Instead, it



                                          -26-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

decided the case with a four-one-four plurality, with Justice Thomas concurring in

the judgment, but offering an alternative rationale.        Justice Thomas directly

rejected the reasoning used by the plurality and its conclusion that the report was

not used for the truth of the matter asserted and instead concurred solely on the

basis that the report lacked the formality required of testimonial statements. Id. at

___, 132 S. Ct. at 2256 (Thomas, J., concurring in the judgment) (“[T]here was no

plausible reason for the introduction of Cellmark’s statements other than to

establish their truth.”). “When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those Members who concurred in the

judgments on the narrowest grounds. . . .” Marks v. United States, 430 U.S. 188, 193

(1977) (citation and internal quotation marks omitted).       In Williams the only

common, and thereby narrowest, ground between Justice Thomas’s concurrence and

the plurality opinion is that there is no Confrontation Clause violation in a case

having the exact fact pattern of Williams. Williams, thus, is simply not binding

upon this case.2


      2  In fact, the only certainty that can be derived from Williams that is
applicable to this case is that, had the report in Williams possessed the testimonial
qualities of solemnity and formality that Justice Thomas was looking for, Justice
Thomas would have likely found a Confrontation Clause violation. See ___ U.S. at
___, 132 S. Ct. at 2259-61. Here the report was certified by Agent Gregory’s
supervisor and prepared for the purpose of serving as evidence against defendant.
There is no question that it is testimonial in nature, even under Justice Thomas’s
standards. See id.; Bullcoming, ___ U.S. at ___, ___, 131 S. Ct. at 2710, 2713-14
(holding a laboratory report that contained a “Certificate of Analyst” was
testimonial); Melendez–Diaz, 557 U.S. at 308, 310 (finding laboratory reports
testimonial when they were sworn to before a notary public by the testing analysts).

                                         -27-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

      The majority next relies on State v. Fair, 354 N.C. 131, 557 S.E.2d 500

(2001), cert. denied, 535 U.S. 1114 (2002) and, by implication, also on State v.

Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009 (1985).

In Huffstetler this Court opined that “[t]he admission into evidence of expert opinion

based upon information not itself admissible into evidence does not violate the Sixth

Amendment guarantee of the right of an accused to confront his accusers where the

expert is available for cross-examination.” 312 N.C. at 108, 322 S.E.2d at 120

(citations omitted). In Fair this Court stated that “[a]n expert may properly base

his or her opinion on tests performed by another person, if the tests are of the type

reasonably relied upon by experts in the field.” 354 N.C. at 162, 557 S.E.2d at 522

(emphasis added) (citations omitted).    The majority relies on these cases for its

position that the information upon which an expert relies to formulate his or her

opinion may be admitted as the basis for that opinion without violating the

Confrontation Clause because the defendant has the opportunity to cross-examine

the testifying expert on the substantive evidence, which is only the opinion of the

testifying expert.

      Foremost, these cases predate Melendez-Diaz, Bullcoming, and this Court’s

own decision in State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (2009). Huffstetler

was decided in 1984, well before the Supreme Court’s 2004 ruling in Crawford that

changed the Confrontation Clause landscape. Fair, decided in 2001, also predates

Crawford. To the extent either conflicts with Crawford and its progeny, they are

overruled. With respect to Huffstetler, this conflict with Crawford is most apparent


                                         -28-
                                    STATE V. BREWINGTON
                                    BEASLEY, J., dissenting

in the references to reliability.

        Ohio v. Roberts permitted the admission of testimony without confrontation

when the statements satisfied various indicia of reliability. 448 U.S. at 66. In

Crawford the Supreme Court unambiguously overruled Roberts, regardless of what

the Rules of Evidence may dictate. 541 U.S. at 60, 61, 63, 65, 68-69. Because this

Court’s entire evaluation of the Confrontation Clause claim in Huffstetler concerned

the reliability of the expert opinion and its status as an exception to the hearsay

rule, 312 N.C. at 106-08, 322 S.E.2d at 119-21 (concluding that because the

information was “inherently reliable” and “reasonably relied upon” by other experts

in the field there could be no violation of the Confrontation Clause (internal

citations omitted)), Crawford directly overrules any precedent set by Huffstetler,

making it entirely invalid for purposes of Confrontation Clause jurisprudence. In

turn, because this Court’s opinion in Fair relied almost exclusively on the rationale

developed in Huffstetler, Fair, 354 N.C. at 162-63, 557 S.E.2d at 522, Fair is also

void.

        Further, Huffstetler and Fair are entirely distinguishable from this case. In

both, the testifying expert had actually seen and directly examined the sample in

question at some point. Fair, 354 N.C. at 163, 557 S.E.2d at 522 (noting that the

testifying expert physically examined the clothing cutouts and held them up to the

clothing to confirm from where they were cut); Huffstetler, 312 N.C. at 105-06, 322

S.E.2d at 119 (noting that the testifying expert had performed some of the tests on

the samples to determine the blood grouping). Thus, these testifying experts were


                                             -29-
                               STATE V. BREWINGTON
                               BEASLEY, J., dissenting

not working solely from the reports of the testing analysts and added some of their

own independent work to the information derived from the underlying reports. In

contrast, here the expert had only the report of the testing analyst, had never

personally tested the actual sample, and had never touched or seen it until trial.

Her opinion was entirely dependent upon the work of the testing analyst, in direct

contradiction to the holding in Bullcoming.

      That the evidence in question here goes to the heart of what the State is

required to prove further distinguishes this case from those upon which the

majority relies. Williams dealt with DNA matching that amounted to “bolstering

evidence” to suggest that the defendant was the perpetrator. The defendant could

have been convicted without DNA evidence; thus, the DNA was not evidence needed

to prove an essential element of the crime. Similarly, Huffstetler and Fair were

both homicide cases in which the evidence in question was not direct proof required

to establish an essential element of the crime. See Fair, 354 N.C. at 136-39, 557

S.E.2d at 507-08 (examining testimony regarding DNA testing with respect to the

Confrontation Clause evidence, amid other evidence implicating the defendant in

the victim’s murder, including possession of the alleged murder weapon, use and

possession of the victim’s credit cards, lay witness testimony, and prior statements

made by the defendant); Huffstetler, 312 N.C. at 96-99, 105-06, 322 S.E.2d at 114-

15, 119 (addressing evidence of blood matches with respect to the Confrontation

Clause, amid a slew of other evidence implicating the defendant in the victim’s

murder, including the alleged murder weapon).        Conversely, in Bullcoming the


                                        -30-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

evidence at issue went to prove an essential element of the crime—an elevated

blood alcohol level—without which the defendant could not be convicted.

Bullcoming, ___ U.S. at ___, 131 S. Ct. at 2709 (“Principal evidence against

Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood-

alcohol concentration was well above the threshold for aggravated DWI.”). Thus,

this case is bound by Bullcoming.3

      The parallel to Bullcoming becomes more apparent in the context of the

majority’s opinion in State v. Craven, ___ N.C. ___, ___ S.E.2d ___ (2013) (holding

that the testifying expert was a mere “surrogate”), decided concurrently with this

case. That the majority in Craven holds a Confrontation Clause violation occurred

under the precedent of Bullcoming, but fails to do so here, is a remarkable

demonstration of the semantics embodied in the term “independent opinion.” In

Craven the State asked the substitute analyst, who coincidentally was also Agent

Schell, whether she reviewed the reports of the testing analyst and whether she

agreed with the results of the report. She answered both questions affirmatively.


      3  Our Court’s decision in Locklear is both valid and factually applicable to
this case as well. In Locklear this Court recognized the firm precedent set by
Crawford and concluded that it was a violation of the Confrontation Clause to admit
the opinion testimony of a forensic analyst as to the reports and findings of two
nontestifying forensic analysts with respect to the cause of death and identity of the
victim. 363 N.C. at 451-52, 681 S.E.2d at 304-05. This Court, however, found that
the violation was harmless because the State had presented “other evidence of” a
second, unrelated murder allegedly committed by the same defendant, and
“[n]either fact [provided by the testifying expert regarding the other victim] was
critical . . . to the State’s case against defendant for the murder [for which the
defendant was being tried].” Id. at 453, 681 S.E.2d at 305 (emphasis added). As
mentioned above, the evidence presented in this case through Agent Schell’s
testimony was most certainly “critical” to the State’s case.

                                         -31-
                                STATE V. BREWINGTON
                                 BEASLEY, J., dissenting

Craven, ___ N.C. at ___, ___ S.E.2d at ___. That exact same procedure was followed

here: Agent Schell stated that she did not perform the tests, but reviewed the

reports of the testing analyst and agreed with the conclusions. In both Craven and

the case sub judice the information at issue goes to a critical element of the offense

charged.    Yet, in Craven the fatal error to achieving the classification of

“independent opinion” as observed by the majority was that the State then asked,

“What was [the testing analyst’s] conclusion?”       Here the State asked for Agent

Schell’s opinion. This is mere semantics.

      In overruling Roberts, the Supreme Court made clear that the Confrontation

Clause is concerned with more than just hearsay. Crawford, 541 U.S. at 51 (“[N]ot

all hearsay implicates the Sixth Amendment’s core concerns.               An off-hand,

overheard remark might be unreliable evidence and thus a good candidate for

exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses

the Confrontation Clause targeted. On the other hand, ex parte examinations might

sometimes be admissible under modern hearsay rules, but the Framers certainly

would not have condoned them.”).        Thus, it is not enough to only examine the

diction that a witness employs to provide another’s statement; our courts must

examine the substance of what is said as well. When both opinions are determined

to be the same by the substitute expert’s own statement of agreement with the

testing analyst, and when the substitute analyst’s opinion is entirely dependent

upon the information provided by the testing analyst, there is no practical or logical

basis for excluding one opinion over the other: the substance is still a violation of the


                                          -32-
                                  STATE V. BREWINGTON
                                   BEASLEY, J., dissenting

Confrontation Clause because of the procedural concern raised under the

circumstances. The defendant’s constitutional right to confrontation must not hinge

on such a charade of diction.

       Further, the majority’s inconsistency between Craven and this case actually

encourages the State to produce less evidence in order to secure a conviction while

circumventing the Confrontation Clause. This paradox is a result of the factual

nuance between the cases: in Craven the testimonial reports of the nontestifying

testing analyst were admitted into evidence without the pretext of their serving as

“basis information,” whereas here the reports were not admitted. The majority’s

opinion does not turn on this nuance4 but by virtue of the result, the majority

elevates this nuance to significance.         Yet the form in which the testimonial

statements are admitted should have no bearing on our Confrontation Clause

analysis, especially when the information at issue goes to a critical element of the

offense charged.

       Lab reports are “testimonial in nature.”         Melendez-Diaz, 557 U.S. at 311

(concluding that “[lab] analysts’ affidavits were testimonial statements, and the

analysts were ‘witnesses’ for purposes of the Sixth Amendment”).                  When the

substance of the testimony presented by the substitute analyst is specifically

derived from the lab reports such that there can be no independent opinion because



       4 The majority in Craven holds that it is not the admission of the reports that trigger
the Confrontation Clause, but the admission of the surrogate analyst’s statements
themselves: “[T]he statements introduced by Agent Schell constituted testimonial hearsay,
triggering the protections of the Confrontation Clause.” ___ N.C. at ___, ___ S.E.2d at ___.

                                            -33-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

this information is admitted for the truth of the matter asserted, as demonstrated

above is the case here, the information too is testimonial in nature. The form does

not change the substance, nor does form change the original source. Whether the

information contained in the lab reports was admitted in written form, or in oral

form through Agent Schell’s testimony, our Court must address the Confrontation

Clause procedural concern. The jury still receives the same information without

presenting a defendant the opportunity to expose the potential falsities or

weaknesses therein. Consequently, it appears an even more egregious violation of

the Confrontation Clause to permit only oral testimony of this critical element of

the charged offense, eviscerating the importance of the admission of the signed lab

report, especially considering the statutory requirements.

      The rule I propose today would not unreasonably impede the State’s

opportunity to offer proof of all necessary elements of the crime. Under Crawford

the State may utilize such testimonial evidence when it can show “unavailability

and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68. While

perhaps inconvenient, this is not too high a hurdle to impose to protect our citizens’

constitutional rights.   See Melendez-Diaz, 557 U.S. at 325 (“The Confrontation

Clause may make the prosecution of criminals more burdensome, but that is equally

true of the right to trial by jury and the privilege against self-incrimination. The

Confrontation Clause—like those other constitutional provisions—is binding, and

we may not disregard it at our convenience.”). Moreover, I fear our lower courts will

be left with no guidance on what constitutes an “independent opinion” when data


                                         -34-
                               STATE V. BREWINGTON
                                BEASLEY, J., dissenting

are “truly machine-generated,” and when a violation of the Confrontation Clause

has occurred. The rule I propose would provide clear guidance to the lower courts

when determining what constitutes a violation of the Confrontation Clause,

consistent with the United States Constitution, the previous guidance of both this

Court and the United States Supreme Court, and common sense.

      In the exercise of that rule, it is clear that today we are presented with a case

in which the State offered a testifying expert to parrot the report of the

nontestifying testing analyst in order to admit evidence of a critical element of the

offense charged.   Today we are presented with a case that mimics Bullcoming.

Today we are presented with a case that clearly violates the Confrontation Clause.




                                         -35-
