Opinion
No. COA07-1489-2.
Filed March 16, 2010.
Macon County, Nos. 05 CRS 50962-64.
Appeal by defendant from judgments entered 23 March 2007 by Judge Ronald K. Payne in Macon County Superior Court. This case was originally heard in the Court of Appeals 14 May 2008. Upon remand by order from the North Carolina Supreme Court, filed 27 August 2009.
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State.
Devereux Banzhoff, PLLC, by Andrew B. Banzhoff, for defendant-appellant.
Defendant James David Sizemore appeals his convictions of one count of first degree arson and two counts of insurance fraud. In an opinion entered 5 August 2008, this Court found no error and upheld defendant's convictions. See State v. Sizemore, 191 N.C. App. 612, 664 S.E.2d 78, 2008 N.C. App. LEXIS 1460, 2008 WL 2968921 (2008) (unpublished). Upon defendant's petition for discretionary review of that decision, the North Carolina Supreme Court, by order issued 27 August 2009, remanded the case to this Court for reconsideration of defendant's Confrontation Clause argument "in light of the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)," which was decided 25 June 2009. State v. Sizemore, 363 N.C. 578, 684 S.E.2d 37 (2009). In an order entered 5 November 2009, this Court directed the parties to re-brief the sole issue on remand: "Whether the trial court violated the defendant's Confrontation Clause rights by admitting testimonial evidence where the defendant had not had a prior opportunity to cross examine the witness?" Both defendant and the State submitted supplemental briefs.
The facts of this case are set out fully in this Court's prior opinion. See Sizemore, 2008 N.C. App. LEXIS 1460 at *1-4, 2008 WL 2968921 at *1-2. Pertinent here, defendant was indicted for first degree arson and two counts of insurance fraud, stemming from a fire in defendant's apartment on 30 March 2005. Special Agent John Bendure, a chemical analyst with the SBI crime laboratory, tested several items found in defendant's apartment for the presence of accelerants. Bendure died prior to defendant's trial and Charles McClelland, Jr., Special Agent-in-Charge of the SBI crime lab, testified that Bendure's test results indicated the presence of gasoline and residual gasoline on the samples obtained from defendant's apartment. McClelland also gave his expert opinion that, based on all the information in the lab file as well as Bendure's report, each sample tested contained gasoline or residual gasoline.
Defendant was convicted of all three charges and the trial court sentenced defendant to a presumptive-range term of 64 to 86 months imprisonment for the arson charge. As for defendant's insurance fraud convictions, the trial court sentenced defendant to two consecutive terms of 6 to 8 months imprisonment, but suspended the sentences and imposed 36 months of supervised probation.
Defendant argues on remand that the trial court erred in permitting McClelland to testify as to the presence of accelerants on the samples taken from defendant's apartment since McClelland was not the analyst who performed the forensic tests or generated the lab report documenting the test results. Defendant contends that under the Confrontation Clause of the Sixth Amendment, " Melendez-Diaz compels the conclusion that the admitted testimony violated [his] confrontation rights."
The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. The Confrontation Clause "guarantees a defendant's right to confront those `who bear testimony' against him." Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 321 (quoting Crawford v. Washington, 541 U.S. 36, 51, 158 L. Ed. 2d 177, 193 (2004)). Thus, "[a] witness's testimony against a defendant is . . . inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." Id. at ___, 174 L. Ed. 2d at 321.
The "focus" of the analysis is whether the challenged statement is "testimonial" as only that type of statement makes a declarant a "witness" under the Confrontation Clause. Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192-93. Although not exhaustively defined, "testimonial" statements include ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Id. at 51-52, 158 L. Ed. 2d at 193 (internal citations, quotation marks, and alterations omitted).
In Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, the United States Supreme Court addressed the constitutionality of the admission of "`certificates of analysis' showing the results of the forensic analysis performed on the seized substances." Because the only purpose of admitting the sworn certificates under state law was to provide a substitute for in-court testimony regarding the composition, quality, and weight of the substance at trial, the Supreme Court held that the certificates of analysis were "testimonial statements, and the analysts were `witnesses' for purposes of the Sixth Amendment." Id. at ___, 174 L. Ed. 2d at 322.
Our Supreme Court has recently addressed Melendez-Diaz's holding, concluding that opinion testimony merely reporting the conclusions of other analysts is "testimonial" in nature. State v. Locklear, 363 N.C. 438, 451-53, 681 S.E.2d 293, 304-05 (2009). The Locklear Court thus held that the defendant's right to confrontation was violated by the admission of expert testimony based on non-testifying analysts' reports where the "State failed to show that either witness was unavailable to testify or that defendant had been given a prior opportunity to cross-examine them." Id. at 452, 681 S.E.2d at 305.
Neither Melendez-Diaz nor Locklear control this case. Rather, as defendant implicitly recognizes in his supplemental brief, this case is materially indistinguishable from State v. Mobley, ___ N.C. App. ___, ___, 684 S.E.2d 508, 512 (2009), disc. review denied, ___ N.C. ___, ___ S.E.2d ___, 2010 N.C. LEXIS 94 (Jan. 28, 2010), where this Court held that the Confrontation Clause was not implicated by expert testimony concerning whether the DNA profile found on the rape victim in that case matched the defendant's. Although the analyst who testified did not run the tests or generate the report at issue, the witness "testified not just to the results of other experts' tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts' tests, and her own expert opinion based on a comparison of the original data." Id. at ___, 684 S.E.2d at 511. Recognizing that an expert is permitted to testify as to his or her own conclusions based on the testing of other experts in the field, that evidence offered as the basis of an expert's opinion is not offered for the truth of the matter asserted, and that evidence offered for purposes other than proving the matter asserted does not violate the Confrontation Clause, the Court distinguished Melendez-Diaz and Locklear:
By contrast, in this case, the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under North Carolina case law. Therefore, we hold [the expert]'s testimony does not violate the Confrontation Clause. . . .
Mobley, ___ N.C. App. at ___, 684 S.E.2d at 512.
Similarly, in this case, McClelland testified extensively regarding the chain of custody and testing procedures involved in analyzing samples that came into the SBI lab. McClelland reviewed the information in the file regarding Bendure's testing and controls and concluded that his test results were properly generated. McClelland also stated that analysis reports like Bendure's were the type of information a forensic chemist would use to form an opinion as to whether samples contained accelerants. McClelland then gave his expert opinion that accelerants were present in the items found in defendant's apartment:
A. My opinion is that all the samples in this case contained gasoline or residual gasoline, and I base that opinion not only on just reading [Bendure's] report, but I actually went through his file, looked at all the chromatograms and the mass spectrum in this particular case —
[DEFENSE COUNSEL]: Objection, Your Honor, to hearsay of the other documents that may have been in his file. I don't have those in front of me.
THE COURT: Overruled. He's testifying what he's relied upon in reaching his conclusion. Go ahead, sir.
[McCLELLAND]: Yes, sir.
A. I went through the — I went through each page of the file and went through all the chromatograms and all the mass spectrum and if I were to have those files in front of me, I would make the same, exact conclusions that Special Agent Bendure did.
As his testimony indicates, McClelland did not simply summarize Bendure's test results, as in Locklear. Nor did the State offer Bendure's report as prima facie evidence of the crime charged, as in Melendez-Diaz. Rather, like the expert witness in Mobley, McClelland formed his own, independent conclusion, relying on test results in the lab file as well as Bendure's report. McClelland's use of Bendure's forensic report as part of the basis for his expert opinion does not violate the Confrontation Clause as the report was not offered to prove the matters asserted in the report, but rather, to show the basis of McClelland's opinion. See Crawford, 541 U.S. at 59 n. 9, 158 L. Ed. 2d at 197 n. 9 ("The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."). McClelland, moreover, was subject to cross-examination by defendant regarding his independent expert opinion.
Defendant nonetheless argues that Mobley "swallows the Melendez-Diaz rule," creating a "situation where [a] defendants [sic] substantial confrontation rights are rendered meaningless by operation of who is testifying." Melendez-Diaz, contrary to defendant's argument, did not hold that the analyst who conducted the tests must testify at the defendant's trial. See United States v. Turner, 591 F.3d 928, 934 (7th Cir. 2010) (rejecting defendant's contention that " Melendez-Diaz stands for the proposition that he should have been able to confront [non-testifying analyst who conducted testing] on the witness stand").
Where, as here, an "underlying report" is used, not as proof of the matter asserted in the report, but as a basis for expert testimony, subject to cross-examination, the Confrontation Clause is not violated. Mobley, ___ N.C. App. at ___, 684 S.E.2d at 512. In short, Melendez-Diaz did not undermine the principle that "the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself." United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008). We conclude, therefore, that the trial court did not err in admitting McClelland's expert testimony that accelerants were found in the samples taken from defendant's apartment.
Assuming, however, that McClelland's testimony violated the Confrontation Clause and thus the admission of the testimony was error, reversal is not required if the error was harmless beyond a reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2009) ("A violation of the defendant's rights under the Constitution of the United States is prejudicial unless . . . it was harmless beyond a reasonable doubt."); State v. Lewis, 361 N.C. 541, 549, 648 S.E.2d 824, 830 (2007) (applying harmless beyond reasonable doubt analysis to Confrontation Clause violation). "[O]verwhelming evidence of guilt may render error of constitutional dimension harmless beyond a reasonable doubt." State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988).
Here, in this case, review of the record establishes beyond a reasonable doubt that the jury would have reached the same verdict in the event that the trial court had excluded McClelland's testimony. The State's evidence at trial established defendant's motive for the arson through testimony and documentary evidence indicating that numerous items defendant claimed on his insurance form as being destroyed in the fire were found later in his business office, including a laptop computer, a dining room table and chairs, a vacuum cleaner, lamps, and wall hangings.
SBI Special Agent Kenneth Bivens, an expert in arson investigation, also testified at defendant's trial, stating that there was an "overwhelming smell of gasoline in th[e] closet" in defendant's apartment where the samples analyzed by Bendure were taken. Bivens also testified that the blue gas container, which was also tested by Bendure for accelerants, contained liquid that "smell[ed] like gasoline." After noticing the smell of gasoline in the closet, Bivens used Kaufman, a canine trained to detect the presence of accelerants, to search defendant's apartment; Kaufman "alerted" on the blue gas can and twice in the closet from which the samples were taken. Given this evidence, we conclude that assuming it was error to admit McClelland's testimony, the error was harmless beyond a reasonable doubt. See State v. Boston, 191 N.C. App. 637, 653, 663 S.E.2d 886, 897 (2008) (concluding Fifth Amendment error in arson case was harmless beyond a reasonable doubt where State's evidence "overwhelming[ly]" established motive and presence of accelerants).
No Error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).