An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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.
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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.
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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
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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.
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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
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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
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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.
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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).
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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
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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.
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NO ERROR.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).