State v. Ortiz-Zape

• Court: North Carolina Supreme Court
• Writing for the Court: Justice BEASLEY took no part in the consideration or decision of this case.
• Citation: State v. Ortiz-Zape, 743 S.E.2d 156 (N.C. 2013)
• Decision Date: 27 June 2013
• Docket Number: No. 329PA11.,329PA11.
• Parties: STATE of North Carolina v. Mario Eduardo ORTIZ–ZAPE.

743 S.E.2d 156

STATE of North Carolina

v.Mario Eduardo ORTIZ–ZAPE.

No. 329PA11.

Supreme Court of North Carolina.

June 27, 2013.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous, unpublished decision of the Court of Appeals, 213 N.C.App. 425, 714 S.E.2d 275 (2011), reversing in part and vacating a judgment entered on 19 February 2010 by Judge Jerry Cash Martin in Superior Court, Mecklenburg County. Heard in the Supreme Court on 13 February 2013.

Roy Cooper, Attorney General, by Amy Kunstling Irene and Daniel P. O'Brien, Assistant Attorneys General, for the State-appellant.

Staples S. Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellee.

MARTIN, Justice.

An expert in forensic science testified as to her opinion that a substance was cocaine, based upon her independent analysis of testing performed by another analyst in her laboratory. The Court of Appeals held that this testimony violated defendant's Sixth Amendment right to confront witnesses against him. We disagree and reverse.

On the night of 16 May 2007, Officer Craig Vollman of the Charlotte Mecklenburg Police Department (CMPD) was on patrol duty in the University City area. Around 10:30 p.m. a car driven by defendant pulled into an Exxon gas station. Officer Vollman observed that the car's thirty-day temporary tag was “ratty and old” and the “dates looked to be tampered with.” When defendant parked in front of the gas station store, Officer Vollman pulled his patrol car behind defendant's vehicle and approached him to speak about the thirty-day tag. While defendant looked through the glove compartment for the car's registration paperwork, Officer Vollman shined his flashlight around the car to check for weapons. Upon shining the light in the storage compartment of the open driver's door, he saw what he believed to be cocaine packaged in a plastic bag.

Officer Vollman asked defendant what was in the bag. According to Officer Vollman's testimony, defendant stated, “It's mine,” and responded affirmatively that it was cocaine but that “it was for personal use.” Officer Vollman placed defendant under arrest. He then found “eight separate plastic sandwich baggies” in the same door compartment as the cocaine. He also searched defendant and found $304 in cash in his pocket. After defendant had been transported to the Mecklenburg County jail, another officer weighed the confiscated substance and recorded the result as 4.5 grams. The substance was subsequently sent to the department's crime lab for analysis. Defendant was indicted for possession with intent to sell or deliver cocaine.

At trial the State sought to introduce Tracey Ray of the CMPD crime lab as an expert in forensic chemistry. During voir dire proceedings on the matter, defendant sought to exclude admission of a lab report created by a non-testifying analyst and any testimony by any lab analyst who did not perform the tests or write the lab report. Defendant based this motion primarily on Sixth Amendment grounds, arguing that admission of this evidence would violate his right to confront witnesses against him. The trial court ruled that Ray could testify about the practices and procedures of the CMPD crime lab, her review of the testing in this case, and her independent opinion concerning the testing. But the trial court excluded admission of the non-testifying analyst's lab report under Rule of Evidence 403.

Before the jury, the State introduced Ray as an expert in forensic chemistry. Ray testified she had been a forensic chemist for approximately eleven years and had analyzed substances more than one thousand times for trial purposes. Ray explained the standard procedures for receipt and storage of substances sent to the CMPD crime lab. She testified that, based on the initials and control number on the plastic bag containing the white substance—which had been admitted into evidence as Item Number 9—the substance had been sent to the CMPD crime lab. She stated the initials “JPM” on the item indicated to her that a chemist named Jennifer Mills, who formerly had worked at the crime lab, “was in receipt of this evidence and that she sealed this particular piece of evidence.”

Ray then explained, based on her knowledge of the lab's standard procedures, what would happen to an item such as Item Number 9 when it arrived for testing: First, the analyst would ensure that the control numbers on the property report and the actual property matched. Then, the analyst would weigh the substance and perform what is called a “presumptive test” to give an indication of what the substance might be. For substances suspected to be cocaine, the presumptive test is a cobalt thiocyanate test. If the substance turns blue, this indicates that cocaine may be present. Next, the analyst would perform a “confirmatory test” to determine the identity of the substance, using a gas chromatograph mass spectrometer (GCMS) or an infrared spectrometer (FTIR). The instruments that perform these tests record the results and data within the machine, allowing for review later in time. According to Ray's testimony, it is not possible to alter this reviewable data. After completing the testing, the laboratory analyst prepares a report and puts it in the item's case file, along with all notes and data created during the testing. As part of the lab's standard operating procedure, an administrative and a technical review are performed on nearly every case file by another analyst in the lab. As part of this review, the second analyst examines all the data in the case file to ensure he or she would have come to the same conclusion as to the identity of the substance.

Ray also explained that the lab has standard procedures for ensuring that the testing instruments are in working order. CMPD lab procedure dictates that all instruments be tested weekly and monthly, with the results recorded in each instrument's maintenance log. Ray testified that she had reviewed the maintenance logs and determined that all the instruments appeared to have been in working order when Item Number 9 was tested.

Ray testified that she conducted a “peer review” on the chemical analysis of Item Number 9 for defendant's trial. She reviewed all the lab notes and data from the testing instrument. She stated that the color test and the GCMS test performed on the substance are tests that “experts in the field of forensic chemistry would rely upon ... in performing [sic] the opinion as to the identity of a chemical substance.” The prosecutor asked Ray whether, based on her training and experience and her review of the case file here, she had formed an independent expert opinion about the substance at issue in this case. Defense counsel objected and was overruled. Ray testified, “My conclusion was that the substance was cocaine.”

On cross-examination defense counsel further clarified that “any opinions [Ray] g[a]ve in court about the nature of this substance [were] based entirely on testing done by someone else” and that Ray was not present when the tests were performed. Defense counsel also further clarified that Ray's testimony assumed the testing analyst, Mills, had followed standard lab procedures in her testing of Item Number 9.

The jury convicted defendant of possession of cocaine. The Court of Appeals reversed the trial court, relying on State v. Williams, 208 N.C.App. 422, 702 S.E.2d 233 (2010). State v. Ortiz–Zape, 213 N.C.App. 425, 714 S.E.2d 275, 2011 WL 2848792 (2011) (unpublished). The court observed Ray “did not conduct any tests on the substance, nor was she present when [the testing chemist] did,” and concluded that Ray “could not have provided her own admissible analysis of the relevant underlying substance.” Ortiz–Zape, 2011 WL 2848792 at *2 (alteration in original) (citations and quotation marks omitted). The court held “it was error for Ms. Ray to testify as to [the testing chemist's] findings.” Id. (citation omitted). We allowed the State's petition for discretionary review.

“Conclusions of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citations omitted). Defendant argues that, because Ray did not test the substance at issue herself or personally observe any testing, she could form no independent opinion regarding the identity of the substance, and thus admission of her opinion identifying the substance as cocaine violated defendant's rights under the Confrontation Clause. The State argues that there was no Confrontation Clause violation because the expert testified to her own opinion about the identity of the substance. We find no error in the trial court's decision to allow the expert to state her opinion, and we reverse the decision of the Court of Appeals.

To resolve the issue raised in this case, we must examine the North Carolina Rules of Evidence in light of recent Confrontation Clause jurisprudence. The North Carolina Rules of Evidence allow for expert testimony “in the form of an opinion, or otherwise,” if the expert's “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” provided: “(1) The testimony is based upon sufficient facts or data[;] (2) The testimony is the product of reliable principles and methods [and] (3) The witness has applied the principles and methods reliably to the facts of the case.” N.C.R. Evid. 702(a). The expert may base the opinion on facts or data “made known to him at or before the hearing.” Id. R. 703. “If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Id.

While the North Carolina Rules of Evidence permit an expert to present an opinion based on substantively inadmissible information, this evidentiary rule must comport with...