Chicken Little Or Canary In the Coal Mine?, Take 5: Court Of Appeals Of North Carolina Strains To Find Confrontation Clause Wasn't Violated Despite Testimony Concerning Non-Testifying Chemist's Report

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. As I noted in my post in response to the opinion, "[i]f you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little." Well, if courts take the lead of the Court of Appeals of North Carolina in its recent opinion in State v. Hough, 2010 WL 702458 (N.C.App. 2010), it looks like Justice Scalia will be proven right.

In Hough, Kerry McKinley Hough appealed from his convictions for  possession of cocaine and trafficking in marijuana by possessing more than 10 pounds but less than 50 pounds. Police seized various drugs from Hough's residence, and those drugs were subjected to testing by forensic chemist Tony Aldridge, who retired before Hough's trial. Accordingly, 

[a]t trial, Kamika Daniels Alloway..., a forensic chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that she reviewed the lab reports of...Aldridge...and believed his analysis to be accurate. Alloway testified that the substance found [a] the trash can that [Hough] was rolling constituted 17.05 pounds of marijuana. The three bags recovered from [Hough's] garage contained cocaine and weighed 7.93 grams, 7.72 grams, and 7.87 grams respectively. The weight of the cocaine and the marijuana varied from the weights recorded at the scene by [a detective]; however, Alloway testified that the weights in the lab report did not include the packaging. Alloway admitted on cross examination that she did not test any of the substances herself and was not present when Aldridge conducted the tests.

After he was convicted, Hough appealed, claiming, inter alia, that Aldridge's lab reports were "testimonial" and thus admitted in violation of his rights under the Confrontation Clause pursuant to the Supreme Court's opinion in Melendez-Diaz. The Court of Appeals, however, rejected this argument, claiming that the reports were not admitted at trial to prove the truth of the matter asserted in them, distinguishing the case from Melendez-Diaz and North Carolina opinions decided in accordance with it. According to the court, 

[u]pon review of Alloway's testimony, we conclude that her expert opinion was based on an independent review and confirmation of test results, unlike the situations presented in Melendez-Diaz [and subsequent North Carolina opinions]....The report at issue in this case formed the basis of Alloway's expert opinion, but was not offered for the proof of the matter asserted and was not prima facie evidence that the substances recovered from the crime scene were, in fact, marijuana and cocaine. It is not our position that every "peer review" will suffice to establish that the testifying expert is testifying to his or her expert opinion; however, in this case, we hold that Alloway's testimony was sufficient to establish that her expert opinion was based on her own analysis of the lab reports.

Moreover, the court found that "[o]ther federal courts have reached this same conclusion under similar facts." 

I'm not sure that I agree with the court on this point. The first opinion cited by the court was United States v. Richardson, 537 F.3d 951 (8th Cir. 2008), in which the Eighth Circuit found no problem with a forensic chemist offering opinions based on DNA testing by another scientist in her office where the chemist "had an independent responsibility to do the peer review." And the second opinion cited by the court was United States v. Turner, 591 F.3d 928 (7th Cir. 2010), in which the Seventh Circuit found no problem with a senior forensic chemist offering opinions based on a cocaine identification by an analyst where the chemist "was the laboratory supervisor whose job was to personally check [the analyst]'s test results." 

I can see why these courts reached these opinions although I am not sure that I agree with them. In each of these cases, the defendant could not confront the person who conducted the testing, but he could confront the person with responsibility for reviewing that testing. That was not the case, though, in Hough, where Alloway only reviewed Aldridge's testing because he retired. 

If, as the court said, Alloway were only offering opinions regarding Aldridge's testing, this still wouldn't matter, but let's be honest. Alloway was serving as the vessel for the admission of Aldridge's testing. In effect, then, Aldridge's testing was being offered to prove the truth of the matter asserted, and Hough did not get the opportunity to confront him. Thus, the Court of Appeals of North Carolina should have found that Hough's rights under the Confrontation Clause were violated. And the fact that it didn't means that Justice Scalia could be proven correct in that the sky is not falling on criminal prosecutions.

(Hat tip to Professor William A. Woodruff at Campbell Law School for the link)

-CM