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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANTIONNE LEMEL LYLES
Filed: 2 August 2005
1. Evidence--lab report--performing chemist unavailable--basis of expert opinion_right
Lab reports performed by an unavailable chemist were properly admitted as the basis of
the expert opinion of a Charlotte-Mecklenburg supervising chemist that substances taken from
defendant were cocaine. Furthermore, there was no confrontation clause violation where the
expert witness was available for cross-examination.
2. Evidence--hearsay--lab reports--exceptions--public records and business records--
law enforcement exclusion
The law enforcement exclusion in the public records hearsay exception does not limit the
business records exception. N.C.G.S. § 8C-1, Rules 803(8) and 803(6).
3. Constitutional Law--right to remain silent--quiet demeanor during questioning--
closing argument not an impermissible comment
A detective's testimony and the prosecutor's jury arguments about defendant's quiet
demeanor during questioning did not constitute improper comments on defendant's right to
4. Evidence--codefendant charged--admission not plain error
There was no plain error in a cocaine trafficking prosecution from the admission of
evidence that a codefendant was also charged. There was no testimony suggesting that the
codefendant had been found guilty, pleaded guilty, or pleaded nolo contendere, and nothing to
indicate that the jury would have reached a different result without this testimony.
Appeal by defendant from judgment signed 14 January 2004 by
Judge Robert P. Johnston in Mecklenburg County Superior Court.
Heard in the Court of Appeals 23 March 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Tina Lloyd Hlabse, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant.
Antionne Lemel Lyles (defendant) appeals his judgment signed14 January 2004, entered consistent with a jury verdict finding him
guilty of two counts of trafficking in cocaine.
Defendant was arrested at the airport located in Charlotte,
North Carolina (Charlotte Airport) on 29 January 2002, after a
search revealed a pellet on his person and two packages in his
shoes which field-tested positive for cocaine. Defendant was
charged and subsequently indicted for trafficking in 400 or more
grams of cocaine by transportation and trafficking in 400 or more
grams of cocaine by possession.
These matters came for hearing at the 12 January 2004 criminal
session of Mecklenburg County Superior Court with the Honorable
Robert P. Johnston presiding. At trial, the State introduced
expert testimony by Charlotte-Mecklenburg Police Department Crime
Lab supervising chemist Tony Aldridge. Aldridge's testimony was
based on the test results of Willie Rose, a Charlotte-Mecklenburg
Police Department Crime Lab chemist. Rose analyzed the contents of
both the pellet and two packages seized from defendant's shoes.
The results of Rose's tests consisting of two Crime Laboratory
Reports, indicated that the substance in the two shoe packets was
Cocaine, 735.86 grams, and that the substance in the pellet was
Cocaine, 7.53 grams.
Before trial, Rose relocated and was not available to testify.
Aldridge testified it was the regular practice of the Charlotte-
Mecklenburg Police Department Crime Lab Chemistry section to make
and keep Crime Laboratory Reports of the type written by Rose.
Over defendant's objection, the trial court allowed the CrimeLaboratory Reports to be received into evidence under N.C. Gen.
Stat. § 8C-1, N.C. R. Evid. 803(6) (Rule 803(6)), the business
records exception to the hearsay rule.
Defendant was found guilty as charged on 14 January 2004. The
trial court ordered the convictions consolidated for judgment and
sentenced defendant to 175 - 219 months imprisonment and imposed a
mandatory fine of $250,000.00. Defendant appealed.
The issues on appeal are whether the trial court erred in: (I)
admitting into evidence the Crime Laboratory Reports prepared by a
non-testifying chemist, and in admitting the expert testimony of a
chemist whose opinion was based on the analysis of the non-
testifying chemist; (II) admitting evidence regarding defendant's
exercise of his right to remain silent; and (III) admitting
evidence that a co-defendant was also charged in connection with
the search and seizure at the airport which resulted in defendant's
 Defendant asserts the trial court erred by admitting into
evidence the Crime Laboratory Reports under the business records
exception to the hearsay rule, arguing the reports were
inadmissible hearsay, and that admission of the reports and
testimony of Aldridge were in violation of the rules of evidence
and the Confrontation Clause of the United States Constitution.
The State argues the reports were properly admitted as business
records under Rule 803(6). We conclude, however, the reports wereproperly admitted as the basis of the expert opinion given by
(See footnote 1)
Our Supreme Court has considered the admissibility of the
basis of an expert opinion:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to him
at or before the hearing. If of a type
reasonably relied upon by experts in the
particular field in forming opinions orinferences upon the subject, the facts or data
need not be admissible in evidence.
State v. Golphin, 352 N.C. 364, 467, 533 S.E.2d 168, 235 (2000)
(citing N.C.G.S. § 8C-1, Rule 703 (1999)) (allowing the admission
of a doctor's report as the basis of expert opinion when that
report contained several hearsay statements not offered for the
truth of the matter asserted). The Court continued:
Allowing disclosure of the bases of an
expert's opinion is essential to the
factfinder's assessment of the credibility and
weight to be given to it. State v. Jones,
322 N.C. 406, 412, 368 S.E.2d 844, 847 (1988).
Testimony as to matters offered to show the
basis for a physician's opinion and not for
the truth of the matters testified to is not
hearsay . . . . Its admissibility does not
depend on an exception to the hearsay rule,
but on the limited purpose for which it is
offered. State v. Wood, 306 N.C. 510, 516-17,
294 S.E.2d 310, 313 (1982); see also Jones,
322 N.C. at 412, 368 S.E.2d at 847; State v.
Allen, 322 N.C. 176, 184, 367 S.E.2d 626, 630
At trial, Aldridge was tendered and admitted as an expert in
the field of forensic chemistry without objection. Aldridge then
testified that, in his expert opinion, based on his review of
Rose's findings, both packets and the pellet tested positive for
cocaine. The reports themselves were properly admitted as the
basis of Aldridge's opinion. State v. Fair, 354 N.C. 131, 162,
557 S.E.2d 500, 522 (2001) ([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.).
Further, Aldridge testified that the methods employed by Rose were
those reasonably relied upon by other forensic chemists, thatAldridge had actually calibrated Rose's machines, used the same
machines for similar experiments, and reviewed Rose's work after
the analysis was completed.
As our Supreme Court held in State v. Daughtry, 340 N.C. 488,
511, 459 S.E.2d 747, 758 (1995), inherently reliable information
is admissible to show the basis of an expert's opinion, even if the
information would otherwise be inadmissible hearsay. There is no
evidence in the instant case suggesting the information contained
in Rose's test results was not inherently reliable. During voir
dire and during the trial, Aldridge testified about the types of
tests Rose performed on the packages, how those tests were
conducted, and how Aldridge reviewed the results of those tests.
Those results were used by Aldridge in forming his expert opinion
and were admissible at trial to show the basis of that opinion.
Further, there was no Confrontation Clause violation where, as
here, the expert was available for cross-examination. The
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.
State v. Delaney, 613 S.E.2d 699, 2005 N.C. App. LEXIS 1160, *1
(N.C. Ct. App., 2005) (quoting State v. Huffstetler, 312 N.C. 92,
108, 322 S.E.2d 110, 120-21 (1984)).
In the instant case, defendant had ample opportunity to cross-
examine Aldridge about the basis of his expert opinion testimony.
In fact, defendant's entire cross-examination centered on the factthat Aldridge reviewed the test results of another analyst and did
not perform the tests himself. As a result, any credibility issues
regarding the basis of Aldridge's expert opinion testimony were
thoroughly explored before the jury. We hold that defendant's
Sixth Amendment right to confront his accusers was not violated by
the admission of Rose's Criminal Laboratory Reports or Aldridge's
expert opinion testimony.
 Defendant next argues the trial court committed plain
error by allowing into evidence testimony regarding defendant's
exercise of his right to remain silent
(See footnote 2)
. Specifically, defendant
points our attention to the testimony of Detective James
the Charlotte-Mecklenburg Police Department
that defendant was
quiet during questioning and often would not respond to questions.
Defendant also argues the prosecutor's reference to this testimony
during closing arguments constituted plain error
(See footnote 3)
Plain error is error so fundamental as to amount to a
miscarriage of justice, or error that probably resulted in the jury
reaching a different verdict than it otherwise would have reached.
State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(citation omitted). The plain error rule applies only in trulyexceptional cases. State v. Dyson
165 N.C. App. 648, 651, 599
S.E.2d 73, 75 (2004) (citation omitted).
The appellate court must
be convinced that, absent the error, the jury probably would have
reached a different result. See, e.g., State v. Walker
, 316 N.C.
33, 340 S.E.2d 80 (1986) (holding cross-examination of a defendant
about his silence after he was arrested and advised of his
constitutional rights was not plain error).
The transcript reveals that Detective Kolbay was not
questioned regarding defendant's exercise of his right to remain
silent. Instead, Detective Kolbay was asked about defendant's
demeanor during questioning. Detective Kolbay testified that
defendant waived his Miranda
rights and agreed to speak with him.
He testified that defendant was never upset during questioning,
only quiet and slightly unresponsive.
During closing argument, the prosecutor mentioned that
defendant did not answer some of Detective Kolbay's questions and
did not react when the drugs were found on his person. Defendant
specifically draws the court's attention to the following remarks
of the prosecutor during closing argument:
Well, you know, maybe you heard Detective
Kolbay say the co-defendant was crying, that
was his demeanor.
Well, the Defendant did not show any emotion.
He was not upset like the co-defendant was.
. . .
First of all, no eye contact with Inspector
Knight-Norwood. Defense Counsel asked wasn't
it normal for someone to be nervous when
you're being interviewed by Customs?
You're not nervous, if you're not trying to
hide anything. Sure he was nervous, he had
738 grams of cocaine in his shoes. He had a
pellet, 7.5 grams in his stomach. Yes, he was
nervous. No eye contact. How about no
reaction when it was found?
. . .
Now, as far as knowingly, again, we're not
able to prove that the Defendant said yes, I
knew it was there, and I knew it was cocaine.
And that is not what we're required to prove.
. . .
Rarely are you going to have a Defendant who
stands up and says, I knew it was cocaine, I
knew I had it. That would be direct evidence
Circumstantial evidence of knowledge, all the
things we just mentioned. I ask you to
consider those, and find circumstantial
evidence can support he knowingly possessed,
and he knowingly transported.
These closing statements do not amount to an impermissible
comment on defendant's right to remain silent. Moreover, given the
evidence before the jury, we cannot say the jury would likely have
reached a different result had Detective Kolbay's testimony and the
prosecutor's closing statements regarding defendant's demeanor not
been allowed. The trial court did not commit plain error.
 Finally, defendant argues the trial court committed plain
error by admitting evidence that co-defendant Marcus McCoy was also
charged as a result of the seizure at the airport.
Evidence of convictions, guilty pleas, and pleas of nolo-
contendere of non-testifying co-defendants is inadmissible unless
offered for some legitimate purpose. State v. Rothwell
, 308 N.C.782, 303 S.E.2d 798 (1983). This Court has previously determined
that this rule applies equally to co-defendants who are charged and
tried. State v. Gary
, 78 N.C. App. 29, 337 S.E.2d 70 (1985). In
State v. Batchelor
, 157 N.C. App. 421, 579 S.E.2d 422 (2003), we
held that Gary
applies where there is only evidence that a co-
defendant was charged with similar crimes as the defendant, but not
evidence that the co-defendant was tried. Batchelor
at 431, 579
S.E.2d 429. In Batchelor
we held the admission of such testimony
did not rise to the level of plain error where there was no
testimony that the co-defendant had been found guilty, pleaded
guilty, or pleaded nolo contendere to the charges. Id.
Specifically, the Court wrote:
[W]e conclude the trial court erred in
admitting evidence that Mr. Harris was charged
with similar offenses as defendant. However,
this error did not amount to plain error . . .
Detective Bowes testified that the charges
were still pending against Mr. Harris and
thus, there was no testimony that Mr. Harris
had been found guilty, pleaded guilty, or
pleaded nolo contendere to the charges. It is
unlikely that the jury inferred defendant's
guilt from the evidence that his co-defendant
had been charged with similar offenses.
Much like Batchelor, we can find no testimony in the record
before us suggesting the co-defendant had been found guilty,
pleaded guilty, or pleaded nolo contendere. There is nothing to
indicate that a jury would have reached a different result had it
not been for the admission of the testimony. As a result, the
admission of testimony involving the co-defendant, while error,
does not rise to the level of plain error. This assignment oferror is overruled.
Judges McGEE and STEELMAN concur.
Footnote: 1  1Defendant argues that the language of N.C. Gen. Stat. §
8C-1, N.C. R. Evid. 803(8) (Rule 803(8)) regarding public records
and reports restricts the business records exception of Rule
803(6). We find defendant's argument unpersuasive.
In support of his argument, defendant cites the case of
United States v. Oates, 560 F.2d 45 (2d Cir. 1977), in which the
Court of Appeals for the Second Circuit held that exhibits
purporting to be the official report and accompanying worksheet
of a United States customs service chemist were inadmissible
under the law enforcement official exception [Rule 803(8)] and
the business records exception [Rule 803(6)]. Oates at 84. In
Oates, the chemist had analyzed a white powdery substance and
determined it to be heroin. His official report to the same
effect was ruled inadmissible. Id. The court in Oates reasoned
that the restrictions in Rule 803(8) overrode the language of
Rule 803(6). Id. at 83-84.
In State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984), our
Supreme Court expressly rejected the rationale of Oates. In
Smith, the defendant argued that a statute permitting the use of
a chemical analyst's affidavit to prove blood alcohol
concentration, in lieu of the analyst's live appearance, violated
the defendant's constitutional right to confrontation. In
deciding the issue and considering the relationship between Rule
803(6) and Rule 803(8), our Supreme Court inferred that the state
legislature adopted Rule 803(8) without intending to change the
common law rule allowing admission of public records of purely
ministerial observations. Smith at 381, 323 S.E.2d at 327.
Instead the N.C. Supreme Court agreed with a majority of other
courts that the intended purpose of Rule 803(8) was to prevent
prosecutors from attempting to prove their cases through police
officers' reports of their observations during the investigation
of crime. Id. (citing State v. Smith, 675 P.2d 510, 512 (Or.
App. 1984); United States v. Grady, 544 F.2d 598, 604 (2d Cir.
Because defendant failed to object at trial, this assignment
or error is reviewed under the plain error standard. See State v.
, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
Defendant did not object to the prosecutor's closing
argument, nor did he originally assign it as error. Defendant's
motion to amend the record on appeal to add a new Assignment of
Error 18 regarding the prosecutor's remarks during closing
arguments was allowed on 21 September 2004.
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