                  IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 275PA11

                               FILED 27 JUNE 2013

STATE OF NORTH CAROLINA

             v.

DEWAN KENNETH BRENT



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

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 718 S.E.2d 736

(2011), finding prejudicial error in a judgment entered on 16 February 2010 by

Judge Catherine C. Eagles in Superior Court, Forsyth County, and ordering that

defendant receive a new trial. Heard in the Supreme Court on 13 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.

      Charlotte Gail Blake for defendant-appellee.


      MARTIN, Justice.


      At defendant’s trial for possession of cocaine, a forensic scientist stated her

expert opinion that a substance was cocaine, based upon her independent analysis

of testing performed by another analyst in her laboratory. The Court of Appeals

held that this testimony violated defendant’s Sixth Amendment right to confront

witnesses against him. Because defendant failed to preserve for appeal the issues

he raises before this Court, we reverse.
                                  STATE V. BRENT

                                 Opinion of the Court



      The State’s evidence at trial tended to show that on 2 April 2008 Corporal

Michael Knight of the Winston-Salem Police Department detained defendant for

trespassing on the premises of an apartment complex. After returning to his patrol

vehicle to determine whether defendant had any outstanding arrest warrants,

Corporal Knight walked back toward defendant, who was sitting on the curb. As

Corporal Knight did so, he observed defendant’s left hand drop to his side and an

“off-white rocklike object actually roll from his left pants area where his hand was

at.” Officer Resendes, who had arrived to provide backup, also saw the object drop

and noticed a white chalky substance on defendant’s left hand.         The officers

confiscated the object and arrested defendant for trespassing.


      At the Forsyth County magistrates’ office, defendant signed a waiver of his

Miranda rights and said he wished to speak with the officers. Corporal Knight and

Officer Resendes then conducted an interview of defendant, during which defendant

stated that the seized substance was cocaine which he had purchased for one

hundred dollars. He further stated that he had intended to place the cocaine in his

shoe but it rolled away and was seen by the officers. Defendant was subsequently

indicted for felony possession of cocaine, second-degree trespass, and attaining

habitual felon status.


      At trial the State sought to present expert testimony from a forensic drug

chemist, Agent Jennifer Lindley, who worked for the State Bureau of Investigation.


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                                  STATE V. BRENT

                                 Opinion of the Court



After conducting a voir dire hearing on the matter, the trial court permitted Agent

Lindley to testify “as to her independent opinion” based upon laboratory tests

performed by another analyst. During direct examination of Agent Lindley, the

following exchange occurred:

            Q.     [W]hen you reviewed the data that was generated
            in this case, were you able to form an opinion as to what
            the substance that was analyzed was?

            A.     Yes, sir.

            Q.     And what is your opinion?

            A.    It’s my opinion that the substance that was
            analyzed was cocaine base.

On cross-examination, defense counsel further clarified the assumptions upon

which Agent Lindley’s opinion rested.          For example, the following exchange

occurred:

            Q.    Would it be fair to say that your opinion is based on
            these graphs and charts?

            A.     Yes, ma’am, it is.

            Q.     Not on any testing that you’ve done; correct?

            A.    The opinion I formed is based off of the reviewable
            data which was generated by the tests performed in this
            case.

      Defendant was found guilty of possession of cocaine and attaining habitual

felon status. The Court of Appeals awarded him a new trial, holding that the expert

opinion of Agent Lindley was a “mere summarization” of the report created by the

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                                   STATE V. BRENT

                                  Opinion of the Court



non-testifying lab analyst and therefore the admission of the opinion was error.

State v. Brent, ___ N.C. App. ___, 718 S.E.2d 736, 2011 WL 2462941, at *7 (2011)

(unpublished).    We allowed the State’s petition for discretionary review to

determine whether the lab analyst’s opinion based on the non-testifying analyst’s

testing was admissible and whether any error was harmless.


      Before this Court defendant argues that “admission of State’s exhibit 6, the

charts and graphs data prepared by [the non-testifying analyst], as well as Agent

Lindley’s testimony that the substance was cocaine violated Mr. Brent’s right to

confront and cross-examine witnesses against him.”          The State argues that

admission of the expert’s independent opinion and the raw data the expert relied

upon did not violate defendant’s rights under the Confrontation Clause. We hold

that defendant failed to make timely objections to preserve these issues for appeal.

We reverse the decision of the Court of Appeals.


      “Generally speaking, the appellate courts of this state will not review a trial

court’s decision to admit evidence unless there has been a timely objection.” State v.

Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (citation omitted); see also N.C.

R. App. P. 10(a)(1). To be timely, the objection “must be contemporaneous with the

time such testimony is offered into evidence.” State v. Thibodeaux, 352 N.C. 570,

581-82, 532 S.E.2d 797, 806 (2000) (citations omitted), cert. denied, 531 U.S. 1155,

121 S. Ct. 1106 (2011). “Moreover, [a] defendant los[es] his remaining opportunity


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                                    STATE V. BRENT

                                   Opinion of the Court



for appellate review when he fail[s] to argue in the Court of Appeals that the trial

court’s admission of [the evidence] amounted to plain error.” Ray, 364 N.C. at 277-

78, 697 S.E.2d at 322 (citations omitted); see also N.C. R. App. P. 10(a)(4).


      At trial defendant objected to the testimony related to the composition of the

substance only outside the presence of the jury.          Defendant did not object to

admission of either Agent Lindley’s opinion or the raw data exhibit at the time they

were offered into evidence. Because an objection “must be contemporaneous with

the time such testimony is offered into evidence,” defendant failed to preserve the

alleged errors for review.    Thibodeaux, 352 N.C. at 581-82, 532 S.E.2d at 806.

Therefore, the Court of Appeals erred by reaching the merits of defendant’s

argument on the issue of whether admission of the expert opinion violated the

Confrontation Clause. Ray, 364 N.C. at 278, 697 S.E.2d at 322.


      Further, the other issue defendant raises before this Court—that the trial

court erred by admitting the raw data upon which the expert relied—was not

considered by the Court of Appeals because defendant failed to raise it in his brief

before that court. Thus, defendant not only failed to preserve that issue through

objection at trial but, had he preserved the issue, also would have abandoned the

issue by failing to raise it in his brief before the Court of Appeals. See N.C. R. App.

P. 28(a) (“Issues not presented and discussed in a party’s brief are deemed




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                                     STATE V. BRENT

                                    Opinion of the Court



abandoned.”)    Because defendant has waived appellate review of the issues he

raises, he is not entitled to a new trial.


       Moreover, even if defendant had preserved the issues he now raises, he would

not be entitled to a new trial. As for the issue of the expert stating her opinion, we

held in State v. Ortiz-Zape 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.” State v. Ortiz-Zape,

___ N.C. ___, ___, ___ S.E.2d ___, ___ (2013) (citations omitted). We emphasized

that “the expert must present an independent opinion obtained through his or her

own analysis and not merely ‘surrogate testimony’ parroting otherwise inadmissible

statements.” Id. at ___, ___ S.E.2d at ___ (citation omitted). At trial the prosecutor

handed Agent Lindley State’s exhibit number 6, which Agent Lindley explained

contained three machine-produced graphs showing the results of infrared scans.

Agent Lindley further explained that these graphs are produced when the machine

passes a beam of light through a sample. “And depending on the interactions of the

sample with that beam of light, we’re able to show a graph based on the absorbents

of that sample at each different wavelength. We compare that graph to known

standards and are able to make a determination based off of our comparison.”

According to Agent Lindley’s testimony, she reviewed the data generated in this

case, shown in State’s exhibit 6, and formed an “opinion that the substance that was

                                             -6-
                                   STATE V. BRENT

                                  Opinion of the Court



analyzed was cocaine base.” Agent Lindley formed an independent opinion based

on her analysis of data reasonably relied upon by experts in her field. In stating her

opinion, Agent Lindley did not repeat any out-of-court statements by a non-

testifying analyst. Accordingly, Agent Lindley was the person whom defendant had

the right to cross-examine, and her testimony stating her opinion did not violate

defendant’s rights under the Confrontation Clause. See id. at ___, ___ S.E.2d at ___.


      The trial court also admitted State’s exhibit number 6, the machine-

generated graphs showing the results of infrared scans. As we stated in Ortiz-Zape,

machine-generated raw data, “if truly machine-generated,” are not statements by a

person; they are “neither hearsay nor testimonial.” Id. at ___, ___ S.E.2d at ___

(citations omitted).   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.   See id. at ___, ___ S.E.2d at ___.     Here, consistent with the standard

procedure in her crime laboratory, Agent Lindley analyzed the machine-produced

graphs to form her opinion that the substance was cocaine. Admission of these

machine-produced graphs to show the basis of Agent Lindley’s opinion did not

violate defendant’s rights under the Confrontation Clause.


      Defendant did not present timely objections at trial and thereby failed to

preserve the issues he argues before this Court. He lost his remaining opportunity

for appellate review by failing to allege plain error before the Court of Appeals.


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                                   STATE V. BRENT

                                  Opinion of the Court



Even if he had presented timely objections at trial, he would not be entitled to a

new trial because the trial court did not err in admitting either the expert’s opinion

that the substance was cocaine or the exhibit showing the raw data from the testing

instruments. We reverse the decision of the Court of Appeals.


      REVERSED.


      Justice BEASLEY took no part in the consideration or decision of this case.




      Chief Justice PARKER, concurring in the result only.



      Defendant having failed to preserve the alleged errors for appellate review, I

concur in the result only.




      Justice HUDSON, concurring in the result.



      I agree with the majority’s analysis of the waiver issue.        However, the

extended discussion of the merits of the case is entirely dictum, with which I do not

agree for the reasons I have stated in dissenting opinions in State v. Ortiz-Zape, ___

N.C. ___, ___ S.E.2d ___ (2013) (329PA11) (Hudson, J., dissenting), and State v.

Brewington, ___ N.C. ___, ___ S.E.2d ___ (2013) (235PA10) (Hudson, J., dissenting),

                                          -8-
                                  STATE V. BRENT

                               HUDSON, J., concurring

and in a concurring opinion in State v. Craven, ___ N.C. ___, ___ S.E.2d ___ (2013)

(322PA10) (Hudson, J., concurring). Therefore, I concur in the result.




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