in the Court of Appeals 31 October 2017.
by Defendant from judgment entered 13 December 2016 by Judge
Linwood O. Foust in Mecklenburg County Superior Court Nos.
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.
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 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.
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
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
analysis on the substance in the envelope. Defendant was
indicted for felony possession of cocaine in violation of
N.C. G.S. § 90-95.
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
• 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), ...