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State v. Gray

Court of Appeals of North Carolina

May 1, 2018

STATE OF NORTH CAROLINA
v.
PAUL ARNOLD GRAY, Defendant.

          Heard in the Court of Appeals 31 October 2017.

          Appeal by Defendant from judgment entered 13 December 2016 by Judge Linwood O. Foust in Mecklenburg County Superior Court Nos. 14-CRS-234553, 15-CRS-5432.

          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 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 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), ...

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