State v. Gray , 815 S.E.2d 736 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-508
Filed: 1 May 2018
Mecklenburg County, Nos. 14-CRS-234553, 15-CRS-5432
STATE OF NORTH CAROLINA
v.
PAUL ARNOLD GRAY, Defendant.
Appeal by Defendant from judgment entered 13 December 2016 by Judge
Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of
Appeals 31 October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Lauren Tally
Earnhardt, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron
Thomas Johnson, for defendant-appellant.
MURPHY, Judge.
In a criminal prosecution for possession of a controlled substance, when an
expert in forensic chemistry provides testimony that establishes a proper foundation
under Rule 702(a) of the Rules of Evidence, the expert’s opinion is otherwise
admissible, and any unpreserved assignments of error related to the trial court’s
“gatekeeping” function is only reviewed for plain error. Furthermore, when plain
error is assigned to a trial court’s admission of expert testimony on the grounds that
the testimony is not “reliable,” we do not consider data or theories advanced in a
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Opinion of the Court
defendant’s appellate brief which were neither before the trial court when the expert
opinion was admitted nor made part of the record on appeal.
Paul Arnold Gray (“Defendant”) appeals his 13 December 2016 conviction for
felony possession of cocaine in violation of N.C.G.S § 90-95(d)(2). On appeal, he
argues that the trial court committed plain error by admitting the expert opinion of
a forensic chemist because her testimony failed to demonstrate that the methods she
used were “reliable” under the current version of Rule 702. Defendant specifically
maintains that the particular testing process used by the Charlotte-Mecklenburg
Police Department Crime Lab (“CMPD Crime Lab”) to identify cocaine creates an
unacceptable risk of a false positive, and, this risk, standing alone, renders expert
testimony based on the results of this testing process inherently unreliable under
Rule 702(a). We do not consider this theory as it goes beyond the record and conclude
that Defendant received a trial free from error.
BACKGROUND
On 30 August 2014, Defendant was arrested for possession of a stolen motor
vehicle. After placing Defendant under arrest, Sergeant Rollin Mackel (“Sergeant
Mackel”) searched Defendant, and found two small “rocks” in Defendant’s pants
pocket. Sergeant Mackel believed the “rocks” were crack cocaine, so he seized them
and placed them in an evidence envelope for storage and later testing. Lillian Ngong
(“Ngong”), a forensic chemist with the CMPD Crime Lab, performed a chemical
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analysis on the substance in the envelope. Defendant was indicted for felony
possession of cocaine in violation of N.C.G.S. § 90-95.
At trial, the State tendered Ngong as an expert in the field of forensic
chemistry without objection. During direct examination, Ngong testified that she
was employed by the CMPD Crime Lab and that she was the analyst who tested the
substance in the evidence envelope. Ngong then described the methods the CMPD
Crime Lab uses to identify controlled substances:
 First, the substance is weighed.
 Then, a presumptive test is performed by dropping an indicator
chemical on a sample of the substance and observing if the sample
changes color. For a presumptive test for cocaine, if the sample turns
blue, the analyst performs additional testing on the substance with
a gas chromatography mass spectrometer (“GCMS”) to confirm the
result of the presumptive test.
 Next, to ensure that the GCMS is in working condition, analysts first
run a chemical solvent that does not contain any prohibited
substances through the instrument. This is called a “blank.”
 After running the “blank” through the GCMS, the subject substance,
which is believed to contain a controlled substance (such as cocaine
or heroin), is tested with the GCMS.
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 Finally, CMPD Crime Lab analysts evaluate the results of the test
and determine whether or not the substance tested is a controlled
substance.1
After explaining the CMPD Crime Lab’s drug identification methods without
objection, Ngong testified to how she tested and identified the substance seized from
Defendant. She weighed the substance and conducted the presumptive test for
cocaine. She then analyzed the substance seized from Defendant in the GCMS.
Ngong also testified that the GCMS was working properly the day she analyzed the
substance. Based on her analysis, Ngong testified that it was her opinion that the
substance she tested contained cocaine, and Defendant did not object to her expert
opinion.
On cross and re-direct examinations, Ngong testified about another step of
testing utilized by the CMPD Crime Lab. Specifically, after testing the sample, the
lab analysts test a “standard,” which is a substance known to contain cocaine (or
another relevant drug) in the GCMS. Ngong testified that “before we put out any
conclusion” the results of the sample test are compared to the test results of the
1 Ngong provided testimony that demonstrated how CMPD Crime Lab analysts identify
specific drugs using the GCMS. Generally speaking, each drug has a unique molecular signature, like
a fingerprint, that is revealed during testing. Ngong testified that “[w]hen it gets to the end of the gas
chromatography it is introduced into the mass [spectrometer] . . . It breaks down into ions . . . And
each ion is unique to the drug. It’s like a fingerprint. Cocaine will break up in a different way.
Marijuana or THC . . . will break up in a different way . . . Heroin will break up in a different way.
That’s how we identify.”
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known standard. She also testified that she tested a “standard” that was cocaine
after testing the “sample” (the substance seized from Defendant) and that this was
standard practice in forensic chemistry.
Ngong’s opinion testimony was the only evidence that established that the
substance seized from Defendant contained a controlled substance. On appeal,
Defendant contends that Ngong’s expert testimony was unreliable, and therefore
inadmissible under Rule 702(a). However, Defendant did not object to Ngong’s
testimony during trial on these grounds and now requests that this court review this
issue for plain error. On appeal, Defendant argues that the CMPD Crime Lab’s
GCMS process is flawed because it requires an analyst to test the “sample” (which is
believed to contain cocaine) and then test a “standard” (which is known to contain
cocaine) without running another blank to clean out the GCMS and remove any
residue possibly left by the “sample.”2 According to Defendant, by not running
another blank before testing the standard, the CMPD Crime Lab’s drug identification
process creates an unacceptable risk of a false positive, and renders Ngong’s methods
inherently unreliable under Rule 702(a).
STANDARD OF REVIEW
Defendant’s issue on appeal is that the trial court erred in admitting Ngong’s
expert opinion testimony because her “testimony showed that scientific principles
2
However, CMPD Crime Lab analysts do run a blank before testing the sample to make sure
the GCMS is in working condition.
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and methods were not reliably applied” as required by Rule 702(a). Since Defendant
failed to object to Ngong’s testimony during trial, this issue is unpreserved. See N.C.
R. App. P. 10(a)(1). However, we recently held that an unpreserved challenge to the
performance of a trial court's gatekeeping function under Rule 702 in a criminal trial
is subject to plain error review. State v. Hunt, ___ N.C. App. ___, ___, 792 S.E.2d
552, 559 (2016). We review the admission of Ngong’s expert opinion testimony for
plain error.
To establish plain error, a defendant must show that the error “was a
fundamental error—that the error had a probable impact on the jury verdict.” State
v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “Moreover, because plain
error is to be applied cautiously and only in the exceptional case, the error will often
be one that seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal citations, quotation marks, and alterations omitted).
ADMISSIBILITY OF EXPERT TESTIMONY UNDER RULE 702
“Whether expert witness testimony is admissible under Rule 702(a) is a
preliminary question that a trial judge decides pursuant to Rule 104(a).” State v.
McGrady, 368 N.C. 880, 892, 787 S.E.2d 1, 10 (2016). In 2011, the General Assembly
amended Rule 702 of the Rules of Evidence and adopted the Federal Daubert
standard, which gives trial court judges a “gatekeeping” role when admitting expert
opinion testimony. See id. at 885-89, 787 S.E.2d at 8-11. However, the 2011
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amendment did not categorically overrule all judicial precedents interpreting Rule
702, and “[o]ur previous cases are still good law if they do not conflict with the
Daubert standard.” Id. at 888, 787 S.E.2d at 8. Rule 702 does not “mandate
particular procedural requirements,” id. at 893, 787 S.E.2d at 11, and its gatekeeping
obligation was “not intended to serve as a replacement for the adversary system.”
Hunt, ___ N.C. App. at ___, 792 S.E.2d at 559. Rather, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof”
continue as the “traditional and appropriate means of attacking shaky but admissible
evidence.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 461, 597 S.E.2d 674, 688
(2004) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S. Ct.
2786, 2798 (1993)).
Additionally, since the 2011 amendment became effective, we have observed
that:
[w]e can envision few, if any, cases in which an appellate court would
venture to superimpose a Daubert ruling on a cold, poorly developed
record when neither the parties nor the . . . court has had a meaningful
opportunity to mull the question.
Hunt, ___ N.C. App. at ___, 792 S.E.2d at 560 (internal citations and quotation
marks omitted). Our jurisprudence wisely warns against imposing a Daubert
ruling on a cold record, and we limit our plain error review of the trial court’s
gatekeeping function to the evidence and “material included in the record on
appeal and the verbatim transcript of proceedings[.]” See State v. Fair, 354
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N.C. 131, 166, 557 S.E.2d 500, 524-25 (2001) (quotations omitted) (“on direct
appeal, the reviewing court ordinarily limits its review to material included in
the record on appeal and the verbatim transcript of proceedings, if one is
designated.”); see also N.C. R. App. P. 9(a) (“ . . . review is solely upon the record
on appeal[.]”).
The burden of satisfying Rule 702(a) rests on the proponent of the
evidence, and the testimony must satisfy three general requirements to be
admissible. See McGrady, 368 N.C. at 889, 787 S.E.2d at 8 (citing N.C. R. Avid.
702(a)). “[T]he area of proposed testimony must be based on scientific,
technical or other specialized knowledge that will assist the trier of fact to
understand the evidence or to determine a fact in issue.” Id. at 889, 787 S.E.2d
at 6 (internal quotations omitted). The witness must also be “qualified as an
expert by knowledge, skill, experience, training, or education.” Id. “Third, the
testimony must meet the three-pronged reliability test . . . : ‘(1) The testimony
[must be] based upon sufficient facts or data. (2) The testimony [must be] the
product of reliable principles and methods. (3) The witness [must have] applied
the principles and methods reliably to the facts of the case.’” Id. at 890, 787
S.E.2d at 9 (citing N.C. R. Evid. 702(a)(1)–(3)). “The precise nature of the
reliability inquiry will vary from case to case depending on the nature of the
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proposed testimony [and] . . . the trial court has discretion in determining how
to address the three prongs of the reliability test.” Id.
ANALYSIS
Defendant argues that the process used by Ngong and the CMPD Crime Lab
to identify drugs using a GCMS is unreliable under Rule 702(a) because it creates an
unacceptable risk of a false positive. However, this specific argument is based on
documents, data, and theories that were neither presented to the trial court nor
included in the record on appeal. They are only raised in Defendant’s brief.3
Therefore, our plain error review of Defendant’s Rule 702 argument is limited solely
to the record on appeal and the question of whether or not an adequate foundation
was laid before Ngong’s expert opinion was admitted.
After careful review, we conclude that a proper Rule 702(a) foundation was
established at the time Ngong provided her opinion because her testimony
demonstrated that she was a qualified expert and that her opinion was the product
of reliable principles and methods which she reliably applied to the facts of the case.
Ngong was tendered as an expert in the field of forensic chemistry and testified that
she had a degree in Chemistry with over 20 years of experience in the field of drug
identification. She also testified about the type of testing conducted on the substance
seized from Defendant and the methods used by the CMPD Crime Lab to identify
3 For example, Defendant’s brief claims that “after considerable legal research” he has
concluded that no other crime lab uses the exact process for testing substances in a GCMS.
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controlled substances. Ngong then testified that she was the analyst who tested the
substance seized from Defendant, that she used a properly functioning GCMS, and
that the results from that test provided the basis for her opinion. Furthermore, her
testimony indicates that she complied with CMPD Crime Lab procedures and the
methods she used were “standard practice in forensic chemistry.” Ngong’s testimony
demonstrated that she was an experienced forensic chemist who competently
performed a chemical analysis using a properly functioning GCMS to determine if
the two “rocks” seized from Defendant contained cocaine. This testimony was
sufficient to establish a foundation for admitting her expert opinion testimony under
Rule 702.
Defendant also maintains that the trial court erred “by failing to conduct any
further inquiry” when Ngong’s testimony showed Ngong used scientifically unreliable
methods. We disagree. While in some instances a trial court’s gatekeeping obligation
may require the judge to question an expert witness to ensure his or her testimony is
reliable, sua sponte judicial inquiry is not a prerequisite to the admission of expert
opinion testimony. See McGrady, 368 N.C. at 893, 787 S.E.2d at 11 (“[t]he trial court
has the discretion to determine whether or when special briefing or other proceedings
are needed to investigate reliability.”); see also Hunt, ___ N.C. App. at ___, 792 S.E.2d
at 560 (“Daubert did not work a seachange [sic] over . . . evidence law, and the trial
court's role as gatekeeper is not intended to serve as a replacement for the adversary
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system.”). Moreover, “[i]n simpler cases . . . the area of testimony may be sufficiently
common or easily understood that the testimony's foundation can be laid with a few
questions in the presence of the jury.” Id. Here, in the presence of the jury, Ngong’s
testimony adequately established a Rule 702(a) foundation for her opinion that the
rocks seized from Defendant contained cocaine. Therefore, the trial court was not
required to conduct further inquiry into the reliability of her testimony.
Finally, we note that Defendant’s argument does not claim that Ngong’s
testimony is unreliable because GCMS is an inherently unreliable method for
identifying controlled substances.4 Defendant attacks the particular GCMS testing
process used by the CMPD Crime Lab. However, because a proper Rule 702(a)
foundation was established, any procedural shortcomings of the CMPD Crime Lab,
had they been raised during trial, would go to the weight of Ngong’s expert opinion,
not its admissibility. See State v. Hunt, ___ N.C. App. at ___, 790 S.E.2d at 880
(holding that when a qualified expert witness relies on chemical analysis to identify
a controlled substance, any deviation the expert “might have taken from the
established methodology went to the weight of his testimony, not the admissibility of
the testimony” (emphasis added)), review denied, 369 N.C. 197, 795 S.E.2d 206 (2016).
4 Defendant admits that using GCMS to identify controlled substances is considered to be a
scientifically valid method. Under Daubert “[w]idespread acceptance can be an important factor in
ruling particular evidence admissible[.]” Daubert, 509 U.S. at 594, 113 S. Ct. at 2797.
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Based upon the evidence presented through the adversarial process, the trial
court did not err by admitting Ngong’s expert testimony. Since there was no error in
admitting Ngong’s testimony, Defendant is unable to show plain error. State v. Baker,
338 N.C. 526, 554, 451 S.E.2d 574, 591 (1994) (“Since there was no error, there could
be no plain error.”).
CONCLUSION
The trial court did not commit error by admitting Ngong’s expert opinion
testimony under Rule 702.
NO ERROR.
Judges BRYANT and ARROWOOD concur.
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