State v. Gray, ___ N.C. App. ___, 815 S.E.2d 736 (May. 1, 2018)

In this drug case, the trial court did not commit plain error by admitting the expert opinion of a forensic chemist. On appeal, the defendant argued that the expert’s testimony failed to demonstrate that the methods she used were reliable under the Rule 702. Specifically, he argued that the particular testing process used by the Charlotte-Mecklenburg Police Department Crime Lab to identify cocaine creates an unacceptable risk of a false positive and that this risk, standing alone, renders expert testimony based on the results of this testing process inherently unreliable under Rule 702(a). The court declined to consider this argument, concluding that it “goes beyond the record.” The defendant did not object to the expert's opinion at trial. The court concluded that because the defendant failed to object at trial, the issue was unpreserved. However, because 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, the court reviewed the case under that standard. The court noted that its “jurisprudence wisely warns against imposing a Daubert ruling on a cold record” and that as a result the court limits its 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.” (quotation omitted). Here, the defendant’s false positive argument “is based on documents, data, and theories that were neither presented to the trial court nor included in the record on appeal.” The court determined that its plain error review of the 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 [the] expert opinion was admitted.” Here, an adequate foundation was laid. The witness, tendered as an expert in forensic chemistry, testified that she had a degree in Chemistry and over 20 years of experience in drug identification. She also testified about the type of testing conducted on the substance in question and the methods used by the Crime Lab to identify controlled substances. The witness testified that she tested the seized substance, 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 Lab procedures and the methods she used were “standard practice in forensic chemistry.” This testimony was sufficient to establish a foundation for admitting her expert opinion under Rule 702.

The court also rejected the defendant’s argument that the trial court erred “by failing to conduct any further inquiry” when the witness’s testimony showed that she used scientifically unreliable methods, stating: “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.”