State v. Quick

• Court: Court of Appeals of North Carolina
• Decided: January 7, 2014
• Docket: 13-289
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-289 NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA

v. Guilford County No. 10CRS078622

TYRONE ORLANDO QUICK

Appeal by defendant from judgment entered 3 August 2012 by

Judge John O. Craig, III in Guilford County Superior Court.

Heard in the Court of Appeals 9 October 2013.

Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster, III, for the State.

Anna S. Lucas for defendant-appellant.

HUNTER, Robert C., Judge.

Tyrone Orlando Quick (“defendant”) appeals from judgment

sentencing him to 70 to 84 months imprisonment after being

convicted on one count of possession with intent to sell or

deliver heroin and one count of trafficking heroin. On appeal,

defendant argues that: (1) the trial court committed plain error

when it admitted a chemical analyst’s testimony that did not

meet the standards under amended North Carolina Rule of Evidence -2-

702 or the previous standard under Howerton v. Arai Helmet,

Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004), and (2) defendant’s

trial counsel’s failure to object to the chemical analyst’s

identification of the substance was in violation of defendant’s

right to effective assistance of counsel under the Sixth

Amendment. After careful review, we find no error.

Background

The evidence presented at trial tended to establish the

following facts: On 27 May 2010, Detective Curtis Cheeks of the

High Point Police Department Vice and Narcotics Unit (“Detective

Cheeks”) obtained a search warrant for the residence located at

500 Forest Street in High Point, North Carolina. Later that

same morning, Detective Cheeks, with the support of other

officers, executed the search warrant. While searching the

residence, an officer discovered a substance he believed to be

heroin located in the living room mini blinds. Detective Cheeks

also found several cellophane wrappers, stamped baggies, the

stamp itself, and a digital scale.

The evidence found at the scene was gathered, processed,

and sealed in envelopes pursuant to the quality control measures

of the High Point Police Department. The substance believed to

be heroin was later found to weigh 4.82 grams. After collection

of the evidence, Natasha Burns, the owner of the house, and

defendant, who was visiting at the time the search warrant was -3-

executed, were arrested and transported to the High Point Police

Department. The substance gathered at the crime scene was later

delivered in its sealed package to Trot Raney (“Raney”), an

employee of the NarTest Company, to conduct analytical testing

and identification of the substance.

On 7 September 2010, defendant was indicted on charges of

trafficking in a controlled substance and possession with intent

to manufacture, sell, and deliver a controlled substance. The

matter came on for trial in Guilford County Superior Court on 31

July 2012. Raney was tendered by the State as an expert in the

field of forensic chemistry, specializing in the analysis and

identification of controlled substances. He was subsequently

certified as an expert in the field with no objection from

defendant. Following his certification as an expert, Raney

testified as to his methods and procedures as follows:

Q: All right. And what was the purpose of your examination?

A: To determine the content of the plastic bag that I received from High Point.

Q: How did you go about doing that for State’s Exhibit 4.

A: Well, first thing I did was to verify that the package was sealed correctly on the initialed package. Then after that I removed the contents to verify that what was listed as being contained in this envelope were, in fact, what was there. And then I removed the material and weighed the contents of it, recorded that weight. -4-

Q. And then what do you do after you weigh[ed] it?

A. Then I took and crushed up a bunch of the material so I could get a homogenous mixture of it. After doing that weight I ran two color tests, the crystal test and a mass spec test.

Q. And as a result of those tests and your analysis, were you able to form a specific opinion about what the substance contained in what’s been marked as State’s Exhibit 4 is or contained?

A. Yes, ma’am.

Q. And what is that opinion?

A. It’s a schedule one controlled substance[,] heroin.

No objection was made by defendant as to the admissibility of

Raney’s testimony.

The jury later found defendant guilty on one count of

trafficking heroin and one count of possession with intent to

sell or deliver heroin. Defendant was sentenced to a minimum of

70 months imprisonment and a maximum of 84 months imprisonment.

Defendant gave oral notice of appeal in open court.

Discussion

I. Admission of Expert Testimony

Defendant argues that the trial court committed plain error

when it admitted the chemical analyst’s testimony that did not

meet the standards under North Carolina Rule of Evidence 702. -5-

Specifically, defendant contends the chemical analyst’s

testimony met neither the reliability standard set forth under

Rule 702(a) as amended on 1 October 2011 nor the former Rule

702(a) as interpreted by our Supreme Court in Howerton. We

disagree.

“[A] trial court’s ruling on the qualifications of an

expert or the admissibility of an expert’s opinion will not be

reversed on appeal absent a showing of abuse of discretion.”

Howerton, 358 N.C. at 458, 597 S.E.2d at 686. Since defendant

failed to object to the admission of the chemical analyst’s

testimony during trial, we review his challenge to the admission

for plain error. See State v. Mendoza, 206 N.C. App. 391, 395,

698 S.E.2d 170, 174 (2010). “For error to constitute plain

error, a defendant must demonstrate that a fundamental error

occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012). “To show that an error was fundamental,

a defendant must establish prejudice—that, after examination of

the entire record, the error had a probable impact on the jury’s

finding that the defendant was guilty.” Id. (quotation marks

omitted).

The rule governing the admissibility of expert testimony in

North Carolina prior to 1 October 2011 was expressed in N.C.

Gen. Stat. § 8C–1, Rule 702(a) which stated “[i]f scientific,

technical or other specialized knowledge will assist the trier -6-

of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify . . . .” N.C.

Gen. Stat. § 8C–1, Rule 702(a) (2011) (amended October 1, 2011).

Based on this statute, our Supreme Court in Howerton, 358 N.C.

at 458, 597 S.E.2d at 686, devised a three-part test for the

admissibility of expert testimony which has trial courts ask:

“(1) Is the expert’s proffered method of proof sufficiently

reliable as an area for expert testimony? (2) Is the witness

testifying at trial qualified as an expert in that area of

testimony? (3) Is the expert’s testimony relevant?”

The North Carolina General Assembly later amended Rule

702(a), adding language similar to the corresponding federal

rule of evidence. State v. Gamez, __ N.C. App. __, __, 745

S.E.2d 876, 878 (2013). As amended, Rule 702(a) states that

expert testimony is admissible if “all of the following apply:

(1) [t]he testimony is based upon sufficient facts or data[;]

(2) [t]he testimony is the product of reliable principles and

methods[;] (3) [t]he witness has applied the principles and

methods reliably to the facts of the case.” N.C. Gen. Stat. §

8C–1, Rule 702(a) (2012). The provisions of amended Rule 702(a)

became effective 1 October 2011 and “appl[y] to actions arising

on or after that date.” Gamez, __ N.C. App. at __, 745 S.E.2d

at 878; 2011 N.C. Sess. Law ch. 283, § 4.2. -7-

Defendant first argues that the trial court erred by

admitting the expert’s testimony under amended Rule 702(a).

However, this Court recently held that the proper trigger date

for applying amended Rule 702(a) is not the date of the trial

but “the date that the bill of indictment was filed.” Gamez, __

N.C. App. at __, 745 S.E.2d at 878-79. Here, defendant was

indicted on 7 September 2010, which is before 1 October 2011,

when amended Rule 702(a) came into effect. Therefore, we apply

Howerton’s three-prong test interpreting Rule 702(a) as it

existed prior to 1 October 2011 to assess the trial court’s

admission of evidence in this case, not amended Rule 702(a).

Defendant argues that even if amended Rule 702(a) does not

apply here, the expert’s testimony was inadmissible under the

Howerton test. Specifically, defendant argues that the expert’s

proffered method of proof was not sufficiently reliable as an

area for expert testimony because it did not provide a thorough

explanation of the handling of the substance, the acceptability

of the measures in the scientific community, or whether the

procedures were the same as those Raney used while at the SBI.

We find that defendant’s argument is without merit.

To satisfy the first prong of the Howerton test, whether

the expert’s proffered method of proof is sufficiently reliable,

“a court may look to testimony by an expert specifically

relating to the reliability, may take judicial notice, or may -8-

use a combination of the two.” Howerton, 358 N.C. at 459, 597

S.E.2d at 687 (quotation marks omitted). When a court is faced

with unproven scientific methods or techniques, it should

“generally focus on the following nonexclusive ‘indices of

reliability’[:] the expert’s use of established techniques, the

expert’s professional background in the field, the use of visual

aids . . . and independent research conducted by the expert.”

Id. at 460, 597 S.E.2d at 687 (citations omitted). However,

“when specific precedent justifies recognition of an established

scientific theory or technique advanced by an expert, the trial

court should favor its admissibility, provided the other

requirements of admissibility are likewise satisfied.” Id. at

459, 597 S.E.2d at 687. When there is an absence of new

evidence challenging methods previously held to be reliable,

there is no need for the trial court to re-establish the

reliability of such methods in every case. Taylor v. Abernethy,

149 N.C. App. 263, 274, 560 S.E.2d 233, 240 (2002) (holding that

handwriting analysis testimony was admissible because numerous

courts held it was reliable in past cases).

In support of his argument, defendant relies on State v.

McDonald, __ N.C. App. __, 716 S.E.2d 250 (2011), involving the

same expert, Raney, testifying as to his methods of identifying

a controlled substance. In McDonald, Raney provided expert

testimony held by this Court to be sufficiently reliable where -9-

he testified as to the precautionary measures taken during the

tests, the acceptance of the methods in the scientific

community, and his use and training with the equipment used to

perform the tests. Id. at __, 716 S.E.2d at 254.

In the present case, Raney’s testimony does not rise to the

level of detail provided in McDonald. Raney did not thoroughly

explain the precautionary methods he employed in performing the

tests nor did he testify as to the acceptance of the methods in

the scientific community. Raney stated only that he verified

the package was correctly sealed, verified the contents, weighed

the contents, crushed the substance into a homogenous mixture,

and then performed a series of tests on the substance. These

tests included two color tests: a crystal test and a mass spec

test. Raney did not explain how either test worked; he merely

said that he conducted them.

In addition to naming the specific tests he used, Raney

also testified that he was previously employed as an agent for

the SBI and attended multiple training sessions in the field of

drug analysis and identification. This training included

courses in infrared spectrometry and mass spec training, which

were the tests used to identify the substance in this case.

Raney testified that he has worked over 50,000 cases during his

career and has been certified as an expert in drug analysis and

identification in over 900 state, federal, and military cases. -10-

Raney used methods to test the substance that are not novel

or unproven but have been allowed by numerous courts in the past

as means of identifying controlled substances. See, e.g., State

v. Hough, 202 N.C. App. 674, 680-82, 690 S.E.2d 285, 290-91

(2010) (finding no error where the expert analyst conducted a

color test and mass spec test to identify a controlled

substance); State v. Tripp, 74 N.C. App. 680, 684, 329 S.E.2d

710, 713 (1985) (finding no error where Raney had conducted two

color tests, an IR test and mass spec test, to identify a

controlled substance), disc. review denied, 314 N.C. 335, 333

S.E.2d 496 (1985). Thus, Raney’s tests in this case were not in

need of additional “indices of reliability” because, unlike

novel scientific techniques, his methods have repeatedly been

found to be reliable. See Howerton, 358 N.C. at 459-60, 597

S.E.2d at 687. Since Raney used proven methods and defendant

made no objection challenging the reliability of these methods,

we find that the trial court did not need to re-establish their

reliability.

Accordingly, we conclude the trial court did not abuse its

discretion in allowing the expert testimony, and we find no

error in the trial court’s admission of Raney’s testimony

identifying the substance as heroin into evidence. Since there

was no error, there could not have been plain error. State v.

Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986). -11-

II. Assistance of Counsel

Next, defendant argues that he was denied his Sixth

Amendment right to the effective assistance of counsel.

Specifically, defendant argues that his attorney’s failure to

object to Raney’s expert testimony subjected defendant’s case on

appeal to the plain error standard, thereby prejudicing

defendant. We disagree.

“When a defendant attacks his conviction on the basis that

counsel was ineffective, he must show that his counsel’s conduct

fell below an objective standard of reasonableness.” State v.

Fletcher, 354 N.C. 455, 481, 555 S.E.2d 534, 550 (2001). To

meet this burden, a defendant must satisfy the following two-

part test:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel . . . was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. (citation omitted). Moreover, “[c]ounsel is given wide

latitude in matters of strategy, and the burden to show that

counsel’s performance fell short of the required standard is a

heavy one for defendant to bear.” Id. at 482, 555 S.E.2d at 551.

In addressing the first prong of the test, defendant -12-

asserts his counsel’s performance was deficient because he

failed to object to Raney’s identification of the substance as

heroin. Defendant further contends his attorney’s failure to

object could not have been a part of any reasonable trial

strategy. We disagree.

In actuality, and contrary to defendant’s argument, an

objection would have caused Raney to give additional testimony

as to the reliability of the methods he used, likely bolstering

the weight and credibility of his testimony with the jury.

Defendant has failed to meet his burden of demonstrating that

his attorney’s decision not to object to Raney’s testimony was

not part of a trial strategy to leave open the ability to attack

Raney’s testing methodology in closing and on appeal. Moreover,

as discussed above, the trial court’s admission of Raney’s

testimony was not in error. Thus, because defendant has failed

to satisfy the first prong of the test, we find that his

argument regarding ineffective assistance of counsel is

overruled.

CONCLUSION

We conclude that the trial court did not abuse its

discretion or err by admitting Raney’s testimony. Additionally,

defendant has failed to show that his counsel’s performance was

unconstitutionally deficient. We therefore find no error in the

court’s judgment. -13-

NO ERROR.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).