IN THE SUPREME COURT OF NORTH CAROLINA 

No. 291PA12  

FILED 24 JANUARY 2014 

STATE OF NORTH CAROLINA 

  v. 

GLENN EDWARD WHITTINGTON 

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

decision of the Court of Appeals, ___ N.C. App. ___, 728 S.E.2d 385 (2012), vacating 

two convictions and ordering a new trial for a third conviction, all of which resulted 

in judgments entered on 7 April 2011 by Judge Quentin T. Sumner in Superior 

Court, Nash County.  Heard in the Supreme Court on 18 November 2013. 

Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney 

General, for the State-appellant. 

George B. Currin for defendant-appellee. 

EDMUNDS, Justice. 

Before defendant’s trial for narcotics offenses, the State notified defendant 

that, pursuant to North Carolina General Statutes subsection 90-95(g), it intended 

to introduce a laboratory report of the results of a chemical analysis of the 

contraband without calling the testing chemist as a witness.  At defendant’s trial, 

the report was admitted over defendant’s objection.  The Court of Appeals reversed 

defendant’s conviction for trafficking in opium by possession, holding that the State 

STATE V. WHITTINGTON 

Opinion of the Court 

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failed to establish that defendant waived his constitutional right to confront the 

witnesses against him because the record did not demonstrate that the State had 

provided a pretrial copy of the lab report to defendant.  We conclude that defendant 

neither raised nor preserved this issue at trial.  Accordingly, we reverse the Court of 

Appeals on that issue. 

Defendant Glenn Edward Whittington (defendant) was involved in a drug 

sting on 2 July 2008.  Joey Sullivan (Sullivan), a cooperating witness, identified 

defendant to the Nash County Sheriff’s Office as his supplier of illicit prescription 

medicine.  In response, Sergeant Phillip Lewis (Lewis), an investigator in the 

narcotics division of the sheriff’s office, set up a controlled transaction.  Lewis wired 

Sullivan for video and sound, then provided him with cash and gave him 

instructions for the purchase.  Sullivan drove to defendant’s house, bought “16 

green colored pills” from defendant, and returned to Lewis with the pills. 

On 11 May 2009, a three-count indictment was returned charging defendant 

with trafficking in controlled substances by sale (Count I), delivery (Count II), and 

possession (Count III) of between four and fourteen grams of opium, in violation of 

N.C.G.S. § 90-95(h)(4).  On 16 November 2009, the State delivered the pills to the 

State Bureau of Investigation laboratory for chemical analysis.  The SBI lab’s 

report, issued on 8 December 2009, identified the “sixteen green circular tablets” as 

“Oxycodone - Schedule II Opium Derivative” with a weight of “4.3 grams.” 

STATE V. WHITTINGTON 

Opinion of the Court 

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Prior to trial, the State notified defendant that it was invoking North 

Carolina’s notice and demand statute, N.C.G.S. § 90-95(g).  The statute allows the 

State to inform a defendant of its intent to enter into evidence the results of 

chemical analysis identifying whether submitted “matter is or contains a controlled 

substance” without testimony from the analyst who performed the test, so long as 

the notice is timely and the defendant is provided a copy of the report.  N.C.G.S. § 

90-95(g) (2012).  The statute further provides a defendant the opportunity to object 

in writing before trial to introduction of the report without the analyst’s testimony.  

Id.  In a document dated 15 February 2010 titled “Notice of Intention to Introduce 

Evidence at Trial” that was served on defendant and filed with the clerk of court, 

the State advised defendant that it intended to introduce as evidence pursuant to 

N.C.G.S. § 90-95(g), “any and all reports prepared by the N.C. State Bureau of 

Investigation concerning the analysis of substances seized in the above-captioned 

case.  A copy of report(s) will be delivered upon request.”  The record does not 

indicate that, before trial, defendant either requested a copy of the report or raised 

any objection.  

Defendant’s trial began on 6 April 2011.  The State called Jason Bryant 

(Bryant), an investigator with the Nash County Sheriff’s Office, who testified that 

he delivered the pills to the SBI lab for chemical analysis, then later retrieved the 

pills from that lab, along with “a lab sheet of their analysis.”  When the prosecutor 

asked Bryant “what the lab report states,” defendant objected, citing two grounds.  

STATE V. WHITTINGTON 

Opinion of the Court 

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The first grounds challenged the sufficiency of the foundation laid by the State as to 

the chain of custody.  The trial court sustained this portion of the objection and that 

issue is not before us.  Defendant then characterized the second part of his objection 

as constitutional: 

[DEFENSE COUNSEL]: . . .  [T]he second part of 

my foundation is a constitutional basis, Your Honor.  That 

this officer is not allowed -- not a physician, he’s not 

allowed to testify about the examination of a substance 

that was done by another officer who has not been on the 

witness stand, who has not testified and cannot testify 

about the results of any examination that another person 

did based upon purely and simply from reading of the 

report into evidence. 

In response to defendant’s constitutional objection, the prosecutor informed 

the court that the State had notified defendant of its intent to introduce the results 

of the analysis through the lab report.  The court expressed its understanding that, 

once given such notice, defendant had the burden of raising a Confrontation Clause 

objection in sufficient time to allow the State to subpoena the analyst for trial: 

[THE STATE]:  . . . As far as Investigator Bryant 

reading the reports of the lab, the State did file a notice of 

our intent to use the lab [report] to introduce those 

results. Investigator Bryant is not asked to -- to analyze 

the pills, we’re only asking him to read what the State is 

proposing to admit into evidence. 

THE COURT:  I believe once you gave [defendant] 

notice of what you’re intending to do [it] is incumbent 

upon him at that time to indicate the objection -- 

[THE STATE]:  Yes, sir. 

THE COURT:  -- and you would subpoena the SBI 

STATE V. WHITTINGTON 

Opinion of the Court 

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agent here. 

[THE STATE]:  Yes, sir.  Yes, sir. 

THE COURT:  All right. 

Defendant immediately disagreed with the court’s interpretation, contending 

that “my position is that was the law at one time,” then added that “the Melendez-

Diaz case that was decided [by] the United States Supreme Court firmly established 

the point that I’m trying to make to the Court at this point in this case,” citing 

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 

(2009).  Although the court asked defendant if he had anything further, defendant 

provided no additional analysis or argument as the basis for his constitutional 

objection.  The trial court overruled defendant’s constitutional objection and allowed 

Bryant to testify that the SBI lab report identified the “sixteen green circular 

tablets” as “Oxycodone, Schedule II opium derivative, weight of tablets 4.3 grams.” 

Later that same morning, after the jury had been excused for its lunch break, 

the State requested that its “Notice of Intention to Introduce Evidence at Trial,” 

which it had filed and delivered to defense counsel before trial, be entered into the 

court file.  Defense counsel responded that he had no objection to the State’s 

request, but added that “I still rely upon my continuing objections.”  The trial court 

admitted the document.  On 7 April 2011, the jury found defendant guilty as 

charged. 

STATE V. WHITTINGTON 

Opinion of the Court 

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Defendant appealed his convictions to the Court of Appeals, challenging, inter 

alia, the introduction of the lab report into evidence over his objection.  That court 

vacated defendant’s convictions on Counts I and II because of a fatal defect in the 

indictments, a result the State does not contest, and ordered a new trial as to Count 

III, finding that defendant’s constitutional objection should have been sustained 

and that admission of the lab report constituted prejudicial error.  State v. 

Whittington, ___ N.C. App. ___, ___, 728 S.E.2d 385, 388-90 (2012). 

Noting the presumption against a waiver of constitutional rights, the Court of 

Appeals observed that “ ‘[t]he State bears the burden of proving that a defendant 

made a knowing and intelligent waiver of his rights[.]’ ”  Id. at ___, 728 S.E.2d at 

389 (second alteration in original) (quoting State v. Bunnell, 340 N.C. 74, 80, 455 

S.E.2d 426, 429 (1995) (citation omitted)).  The court reviewed N.C.G.S. §  90-

95(g)(1), which, when invoked by the State, in part requires the State to provide a 

copy of the lab report to a defendant prior to trial, id. at ___, 728 S.E.2d at 388-89, 

then reasoned that 

[i]t is the State’s burden to show that it has 

complied with the requirements of N.C.G.S. § 90-95(g)(1), 

and that a defendant has waived his constitutional right 

to confront a witness against him.  This burden includes 

insuring the record on appeal contains sufficient evidence 

demonstrating full compliance with N.C.G.S. § 90-

95(g)(1). 

Id. at ___, 728 S.E.2d at 390. 

STATE V. WHITTINGTON 

Opinion of the Court 

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Observing that “[t]he State concedes that there is no definitive record 

evidence that [d]efendant ever received a copy of the lab report as required by 

N.C.G.S. § 90-95(g),” id. at 728 S.E.2d at 389, the Court of Appeals determined that 

“[b]ecause the record does not show that the State sent [d]efendant a copy of the lab 

report by the required time before trial, . . . [d]efendant did not waive his 

constitutional right to confront the chemical analyst who prepared the lab report.”  

Id. at ___, 728 S.E.2d at 389.  Concluding that “it was error for the trial court to 

admit the lab report into evidence” and that the error was not harmless beyond a 

reasonable doubt, the Court of Appeals vacated defendant’s convictions in part and 

granted defendant a new trial in part.  Id. at ___, 728 S.E.2d at 390.  We allowed 

the State’s Petition for Discretionary Review. 

We review constitutional issues de novo.  State v. Ortiz-Zape, ___ N.C. ___, 

___, 743 S.E.2d 156, 162 (2013).  We first consider the argument that defendant 

made at trial in support of his constitutional objection.  This argument, quoted 

virtually in its entirety above, is based solely upon defendant’s view that subsection 

90-95(g) is no longer good law as a result of the Supreme Court’s 2009 decision in 

Melendez-Diaz.  Subsection 90-95(g), originally included in the statute in 1973, read 

as follows at the time of defendant’s trial: 

(g) Whenever matter is submitted to the North 

Carolina State Crime Laboratory, the Charlotte, North 

Carolina, Police Department Laboratory or to the 

Toxicology Laboratory, Reynolds Health Center, Winston-

Salem for chemical analysis to determine if the matter is 

STATE V. WHITTINGTON 

Opinion of the Court 

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or contains a controlled substance, the report of that 

analysis certified to upon a form approved by the Attorney 

General by the person performing the analysis shall be 

admissible without further authentication and without 

the testimony of the analyst in all proceedings in the 

district court and superior court divisions of the General 

Court of Justice as evidence of the identity, nature, and 

quantity of the matter analyzed.  Provided, however, the 

provisions of this subsection may be utilized by the State 

only if: 

(1) The State notifies the defendant at least 15 

business days before the proceeding at which 

the report would be used of its intention to 

introduce the report into evidence under this 

subsection and provides a copy of the report to 

the defendant, and 

(2) The defendant fails to file a written objection 

with the court, with a copy to the State, at least 

five business days before the proceeding that 

the defendant objects to the introduction of the 

report into evidence. 

If the defendant’s attorney of record, or the defendant if 

that person has no attorney, fails to file a written 

objection as provided in this subsection, then the report 

may[1] be admitted into evidence without the testimony of 

the analyst.  Upon filing a timely objection, the 

admissibility of the report shall be determined and 

governed by the appropriate rules of evidence. 

Nothing in this subsection precludes the right of any 

party to call any witness or to introduce any evidence 

supporting or contradicting the evidence contained in the 

report. 

N.C.G.S. § 90-95(g). 

                                            1 In 2013, after defendant’s trial, the General Assembly amended subsection 90-95(g) 

by changing the term “may” to “shall.”  Act of June 13, 2013, ch. 171, sec. 7, 2013, 2 N.C. 

Adv. Legis. Serv. 421, 423 (LexisNexis) (captioned “An Act to Amend the Laws Regarding 

Disposition of Blood Evidence, Admissibility of Reports after Notice and Demand, and 

Expunction of DNA Samples Taken Upon Arrest.”). 

STATE V. WHITTINGTON 

Opinion of the Court 

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Thus, subsection 90-95(g) is a typical “notice and demand statute,” as 

described by the Supreme Court of the United States: 

[N]otice-and-demand statutes require the prosecution to 

provide notice to the defendant of its intent to use an 

analyst’s report as evidence at trial, after which the 

defendant is given a period of time in which he may object 

to the admission of the evidence absent the analyst’s 

appearance live at trial. 

Melendez-Diaz, 557 U.S. at 326, 129 S. Ct. at 2541, 174 L. Ed. 2d at 331.  In 

response to arguments that such statutes shift to a defendant the burden of giving 

notice of his or her intent to confront the analyst, the Supreme Court found that 

“these statutes shift no burden whatever.”  Id. at 327, 129 S. Ct. at 2541, 174 L. Ed. 

2d at 331. Instead, the Court explained that a 

defendant always has the burden of raising his 

Confrontation Clause objection; notice-and-demand 

statutes simply govern the time within which he must do 

so.  States are free to adopt procedural rules governing 

objections.  It is common to require a defendant to 

exercise his rights under the Compulsory Process Clause 

in advance of trial, announcing his intent to present 

certain witnesses.  There is no conceivable reason why he 

cannot similarly be compelled to exercise his 

Confrontation Clause rights before trial. 

Id. (citations omitted).  Accordingly, we conclude that Melendez-Diaz had no impact 

on the continuing vitality of subsection 90-95(g).  When the State satisfies the 

requirements of subdivision 90-95(g)(1) and the defendant fails to file a timely 

written objection, a valid waiver of the defendant’s constitutional right to confront 

the analyst occurs. 

STATE V. WHITTINGTON 

Opinion of the Court 

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We next consider whether defendant preserved the notice and waiver issue 

that the Court of Appeals found dispositive.  Although the statute requires that the 

State provide a copy of the lab report to a defendant “before the proceeding at which 

the report would be used,” N.C.G.S. § 90-95(g)(1), the State’s notice stated only that 

“[a] copy of report(s) will be delivered upon request.”  As a result, the State’s notice 

was deficient in that, while it establishes that defendant was timely advised of the 

State’s intent, it leaves the record devoid of proof that defendant was also provided 

a copy of the lab report prior to trial. 

Nevertheless, defendant never advised the trial court that the basis of his 

constitutional objection was either the State’s notice or the State’s failure to provide 

a pretrial copy of the lab report.  Instead, the transcript indicates that the 

constitutional objection, first made orally at trial, was based entirely on defendant’s 

mistaken belief that the procedure set out in subsection 90-95(g) had been 

invalidated by the Supreme Court’s opinion in Melendez-Diaz.  Although the trial 

court gave defendant ample opportunity to raise questions regarding the State’s 

compliance with subsection 90-95(g) or any other basis for his objection to admission 

of the lab report, defendant gave none.  Thus, while defendant adequately advised 

the trial court that the basis for his objection was the Confrontation Clause, the 

“specific grounds” that North Carolina Rule of Appellate Procedure 10(a)(1) 

required defendant set out for the trial court did not include any complaint about 

pretrial delivery of the lab report.  N.C. R. App. P. 10(a)(1).  Only in defendant’s 

STATE V. WHITTINGTON 

Opinion of the Court 

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brief to the Court of Appeals did he “swap horses” to raise for the first time the 

issue of the adequacy of the State’s notice to him.  See Weil v. Herring, 207 N.C. 6, 

10, 175 S.E. 836, 838 (1934) (“[T]he law does not permit parties to swap horses 

between courts in order to get a better mount . . . .”).  Consequently, the objection 

that defendant raised in the trial court was properly overruled because subsection 

90-95(g) is still good law, while no objection relating to the State’s compliance vel 

non with subsection 90-95(g) was ever brought to the trial court’s attention.  

Because defendant did not raise or preserve at trial any constitutional theory 

relating to the State’s failure to comply with the provisions of subdivision 90-

95(g)(1), he waived appellate review based upon inadequate notice.  N.C. R. App. P. 

10(a)(1); State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) 

(“[C]onstitutional error will not be considered for the first time on appeal); see also 

State v. King, 343 N.C. 29, 45-48, 468 S.E.2d 232, 242-44 (1996) (stating that when 

the defendant raised at trial a constitutional objection relating to the rights of the 

testifying witness, he failed to preserve a constitutional issue based on his own 

rights); State v Benson, 323 N.C. 318-19, 321, 372 S.E.2d 517, 519 (1988) 

(concluding that when the defendant moved to suppress his confession on several 

grounds and the trial judge denied the motion solely “upon the voluntariness 

theory,” the defendant could not argue for the first time on appeal the new basis 

that his arrest had been unlawful); State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 

STATE V. WHITTINGTON 

Opinion of the Court 

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535, 539 (1982) (“The theory upon which a case is tried in the lower court must 

control in construing the record and determining the validity of the exceptions.”). 

Because defendant failed properly to raise or preserve the issue regarding the 

State’s compliance with subsection 90-95(g), we reverse that portion of the opinion 

of the Court of Appeals that reversed defendant’s conviction on Count III of the 

indictment.  The remaining issues addressed by the Court of Appeals are not before 

this Court and its decision as to these matters remains undisturbed.  This case is 

remanded to the Court of Appeals for consideration of the remaining assignments of 

error. 

 REVERSED IN PART AND REMANDED. 

No. 291PA12 – State v. Whittington 

Justice HUDSON dissenting. 

Because in my view the majority here improperly shifts the burden of proving 

compliance with N.C.G.S. § 90-95(g) from the State to defendant, I respectfully 

dissent. 

It is true that under Melendez-Diaz v. Massachusetts and other Confrontation 

Clause precedent, “[t]he defendant always has the burden of raising his 

Confrontation Clause objection.”  557 U.S. 305, 327, 129 S. Ct. 2527, 2541 (2009).  

In the context of a trial on drug offenses, this means that if the State attempts to 

STATE V. WHITTINGTON 

HUDSON, J., dissenting 

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introduce a lab report without calling the testing analyst to the stand, the 

defendant must object on constitutional Confrontation Clause grounds to protect his 

right to confront witnesses against him.  Here the practical result of the majority 

opinion is that a defendant who wishes to challenge the State’s compliance with our 

notice and demand statute must also object specifically on those grounds.  This is 

not necessary under the cases as I read them.  When a defendant raises a 

Confrontation Clause objection—whether because the State is attempting to have a 

lay witness read the lab report into evidence or that the State has called to the 

stand a substitute analyst who has no truly independent opinion to offer—he has 

met his constitutional burden.  The burden is then on the State to prove waiver, as 

subsection 90-95(g) can provide.  To prove waiver the State must show that it (1) 

“notifie[d] the defendant at least 15 business days before the proceeding at which 

the report would be used of its intention to introduce the report into evidence” and 

(2) “provide[d] a copy of the report to the defendant.”  N.C.G.S. § 90-95(g)(1) (2013).  

This statute appears to require the State’s showing to include documentation, not 

mere assertions.  Therefore, when the State plans on introducing a lab report into 

evidence without the testimony of the testing analyst and the State believes it has 

complied with the requirements of subsection 90-95(g), the State should be prepared 

to submit that documentation at trial to prove compliance in case of an objection by 

the defendant.  If the defendant further challenges that proof (arguing, for example, 

that he did not receive either or both of the documents), then the trial court is 

STATE V. WHITTINGTON 

HUDSON, J., dissenting 

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properly situated to review the evidence and rule on the matter.  Once the State has 

shown compliance with the requirements placed on it under subdivision 90-95(g)(1), 

the burden shifts to the defendant to prove that he “file[d] a written objection with 

the court, with a copy to the State, at least five business days before the 

proceeding.”  Id. § 90-95(g)(2) (2013).  However, the statute appears to shift that 

burden to a defendant only if the State has proved its compliance, and accordingly, 

without the State’s showing of compliance with the statutory requirements, the 

defendant need not object.   

The State argued, and the majority has agreed, that without a specific 

objection on subsection 90-95(g) grounds, the State would not be aware that it might 

later be required to prove its compliance with the statute; this argument serves as 

the basis for the majority’s claim that defendant is attempting to “swap horses 

between courts in order to get a better mount.”  Weil v. Herring, 207 N.C. 6, 10, 175 

S.E. 836, 838 (1934).  In my opinion, this argument fails because an objection on 

Confrontation Clause grounds necessarily includes failure to comply with N.C.G.S. 

§ 90-95(g).  If at trial a defendant objects on any Confrontation Clause basis, the 

easiest response a prosecutor can make is to show waiver—because if a defendant 

has waived his right to object, he has already lost on that issue.  In that sense, the 

constitutional Confrontation Clause right is inextricably bound with the notice and 

demand statute allowing waiver: the constitutional objection can be countered by 

showing waiver, and conversely, any procedural objection to compliance with the 

STATE V. WHITTINGTON 

HUDSON, J., dissenting 

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statute could undermine the State’s claim that a defendant waived his 

constitutional Confrontation Clause rights.  Moreover, here it is clear that the 

prosecutor was well aware that the State’s compliance with subsection 90-95(g) 

would be at issue on appeal, despite no specific objection from defendant on those 

grounds.  This conclusion is evidenced by the colloquy in which the State moved the 

Notice into evidence:  “[The State]:  . . . I anticipate by the way things are going that 

there could be a possible appeal and I just want the record on appeal to reflect that 

[the Notice] was part of the record.”  Any such Confrontation Clause objection 

should instantly alert the State that its compliance with the notice and demand 

statute is being challenged, and the State then has the burden of proving that it 

complied with the statutory requirements.   

The majority also highlights defense counsel’s alleged contention that 

subsection 90-95(g) is no longer good law in light of Melendez-Diaz and his failure to 

challenge the State’s assertion that it complied with the statutory requirements.  I 

agree with the majority that “Melendez-Diaz had no impact on the continuing 

vitality of subsection 90-95(g).”  Ultimately, though, while the transcript here does 

appear to show some confusion on the issues, it does not matter what defense 

counsel said or did not say.  Defendant met his initial burden by objecting to 

admission of the lab report in violation of his Confrontation Clause rights.  The 

burden then shifted to the State to prove compliance with our notice and demand 

statute, which it failed to do.  Any further commentary from defense counsel was 

STATE V. WHITTINGTON 

HUDSON, J., dissenting 

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unnecessary.  Best practices would dictate that a defendant alert the trial court if 

the State fails to meet its burden, but such an objection is not required.  Protection 

of constitutional Confrontation Clause rights requires a defendant to object initially.  

I conclude that here, Defendant met his burden; the State did not meet its own 

burden to show waiver.   

Here, while the State submitted documentary evidence to show compliance 

with the notice requirement, the State did not submit any evidence to show that it 

actually sent a copy of the lab report to defendant.2  The State’s bald assertion that 

“[c]opy of the report was delivered to [defense counsel]” is insufficient.  Therefore, I 

conclude that the State failed to meet its burden under subsection 90-95(g) to prove 

that defendant waived his constitutional Confrontation Clause rights and the trial 

court erred in overruling his objection to admission of the lab report into evidence.  

Defendant did not need to further object or challenge any evidence presented by the 

State because the State failed to meet its initial burden.     

For the reasons stated above, I respectfully dissent.   

Justice BEASLEY joins in this dissenting opinion. 

                                            2 As noted by the majority, while the State’s “Notice of Intention to Introduce 

Evidence at Trial” form is sufficient to give notice, the form is also troubling in some 

aspects in that it may be inconsistent with the statute.  Specifically, the form states that 

“[a] copy of report(s) will be delivered upon request.”  As is made clear by N.C.G.S. § 90-

95(g)(1), the State must provide a copy of the lab report, regardless of whether it is 

requested.   

STATE V. WHITTINGTON 

HUDSON, J., dissenting 

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