State v. Salazar

• Court: North Carolina Court of Appeals
• Writing for the Court: HAMPSON, Judge.
• Citation: State v. Salazar, 859 S.E.2d 644(Table) (N.C. App. 2021)
• Decision Date: 06 July 2021
• Docket Number: No. COA20-593,COA20-593
• Parties: STATE of North Carolina v. Ivan SALAZAR

859 S.E.2d 644 (Table)

STATE of North Carolina v. Ivan SALAZAR

No. COA20-593

Court of Appeals of North Carolina.

Filed July 6, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State.

Sharon L. Smith, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Ivan Salazar (Defendant) appeals from Judgments entered upon jury verdicts finding Defendant guilty of one count each of Possession with Intent to Sell or Distribute Marijuana (PWISD-Marijuana), Possession of Marijuana greater than 1.5 ounces, and Possession of Marijuana Paraphernalia. The Record before us tends to show the following:

¶ 2 Just before 3 a.m. on 15 December 2018, Officer John Boyd (Officer Boyd) of the Fuquay-Varina Police Department was driving on North Main Street while on traffic patrol. As Officer Boyd approached the intersection of North Main Street and Sunset Lake Road, he saw a "blue Mustang" stopped in the opposite traffic lane although the traffic light was green and other cars were passing by. Officer Boyd slowed his patrol car as he drove past the blue Mustang and noticed the driver appeared to be asleep. Officer Boyd then pulled behind the blue Mustang and activated his blue lights—the driver did not seem to respond. Officer Boyd exited his patrol car, approached the driver's window of the blue Mustang, and knocked on the window—the driver, again, did not initially respond. The driver, later identified as Defendant, "eventually woke up," and Officer Boyd "asked [Defendant] what he was doing." Officer Boyd "could smell the strong odor of marijuana emitting from the vehicle as well as alcohol."

¶ 3 Based on these facts, Officer Boyd determined there was "reasonable suspicion [Defendant] had been driving while he was impaired," and Officer Boyd asked Defendant to step out of the vehicle. Officer Boyd noticed Defendant's eyes were "red" and "glassy." Officer Boyd conducted field sobriety tests on Defendant, the results of which led Officer Boyd to continue to believe Defendant was impaired. Eventually, during the course of the stop, Defendant admitted he had recently smoked marijuana. Officer Boyd then asked if there was anything "else in the car" Officer Boyd might find. Defendant initially said there was not, but Defendant then told Officer Boyd there were "roaches" in the vehicle. Officer Boyd understood "roaches" to mean the ends of marijuana "blunts" that still have some marijuana in them after being smoked.

¶ 4 Eventually, Officer Chad Williford (Officer Williford) of the Fuquay-Varina Police Department arrived on the scene as backup. After Officer Williford arrived, Officer Boyd searched Defendant's vehicle. During the search, Officer Boyd could still smell marijuana in the vehicle, and he found a black book bag in the front passenger's seat. While searching the book bag, Officer Boyd found a mason jar containing what appeared to be marijuana, a plastic bag that appeared to contain marijuana, a vacuum-sealed bag that had been opened, a pill bottle that contained thirteen "roaches," and a scale. Officer Boyd also found Defendant's wallet containing $680 in currency in the form of thirty-three twenty-dollar bills and two ten-dollar bills in Defendant's car.

¶ 5 Officer Boyd arrested Defendant and took him to the station for processing on a Driving While Impaired charge while other officers continued to investigate the alleged marijuana found in the vehicle. On 13 August 2019, a Wake County Grand Jury indicted Defendant on charges of PWISD-Marijuana, Maintaining a Vehicle for Keeping or Selling Marijuana, Felony Possession of Marijuana greater than 1.5 ounces, Possession of Drug Paraphernalia, and Carrying a Concealed Weapon. Defendant's arraignment hearing took place on 3 October 2019.

¶ 6 On 24 January 2020, Defendant filed a written Motion to Continue. The Motion to Continue alleged that on 7 January 2020, the State served Notices of Intent to Introduce Expert Testimony of a Dr. Volker Borneman and David G. Minser of Avazyme Labs "to introduce the results of the Avazyme, Inc. analysis of the seized evidence." According to Defendant, it was "imperative to Defendant's case that he be afforded the opportunity to seek his own, independent chemical analysis of the seized evidence[.]"

¶ 7 Defendant's case subsequently came on for trial on 27 January 2020. The trial court first heard Defendant's Motion to Continue. Defendant's trial counsel argued he did not receive the results of the Avazyme lab testing until 7 January 2020 and that he did not know the Defendant's trial had been calendared for 27 January until 20 January. Defense counsel asked the trial court to allow a continuance of the case for thirty days in order to "do what the State has already been allowed to do, which is to have my own independent tests of that sample of what they presume is marijuana" and so that counsel could "intelligently confront and cross-examine [the State's] expert witness." Defense counsel noted he did not think there would be any undue burden on the State if the trial court granted the Motion to Continue. Defense counsel also informed the trial court he had an arraignment in another case in federal court the same week. The trial court denied the Motion to Continue and entered a written Order consistent with its ruling.

¶ 8 At trial, the State called Erin Tracy (Tracy), a forensic chemist with the Raleigh-Wake City County Bureau of Investigation (CCBI), who tested the evidence seized from Defendant, to testify as an expert who tested the evidence police seized from Defendant. Tracy testified, in her expert opinion, the evidence she tested was, in fact, Marijuana; however, CCBI did not have the testing capability to determine the amount of THC in the sample establishing the sample exceeded the allowable limit of THC for hemp. Defendant did not object to this testimony and does not challenge it on appeal.

¶ 9 Because CCBI could not establish the THC concentration in the alleged marijuana, the State sent the evidence to Avazyme Labs for additional testing to establish the THC concentration. The State called Dr. Volker Borneman (Dr. Borneman), President and CEO of Avazyme Labs, as an expert in forensic chemistry. Dr. Borneman testified to the general testing capabilities Avazyme possessed. The State asked Dr. Borneman about a lab report (Report) from testing performed on the alleged marijuana in this case. Dr. Borneman identified David Minser (Minser) as the analyst listed on the Report and described Minser as a "very, very experienced analytical chemist[.]" Dr. Borneman stated the Report indicated the "total THC" in the sample was "13.51" percent. Based on Minser's Report, Dr. Borneman testified he had "no doubt" the evidence Minser tested was marijuana. On cross-examination, Dr. Borneman testified that, during testing, "the analyst takes different parts of the lot and samples it ... till we have the two grams and then that sample gets extracted and analyzed" in order to "get a ... sample that is representative of the whole lot." Dr. Borneman stated he was not able to determine from the Report how Minser sampled the lot in this case. On re-direct, the State introduced the Report into evidence. Defendant did not object to this testimony and does not challenge it on appeal.

¶ 10 Finally, the State called Minser to testify, and the trial court admitted him as an expert in forensic drug chemistry and bioanalytical analysis, extraction, and reporting. When the State asked Minser whether he was the analyst who tested the evidence in this case, he responded: "Well, we work as a team ... I was responsible for generating the [certificate of analysis] ... I pretty much guarantee I didn't do the extraction." The State moved to publish the Report to the jury so that the jury could "follow along"; the trial court granted the Motion. Minser testified, based on the results of the Report, the sample in this case was "definitely marijuana." On cross-examination, Minser reiterated there are "multiple parts" to the testing process including extraction, instrumentation, and processing. Minser could not confirm who did the extraction portion and stated the Report did not list who did. After defense counsel finished cross-examination, counsel asked to be heard outside the presence of the jury at some point.

¶ 11 After re-direct, the trial court afforded defense counsel the opportunity to be heard outside the jury's presence. Defense counsel moved to strike the Report because, according to counsel, "a Melendez-Diaz issue [arose] in that they're now trying to put into evidence a report that's been generated without bringing all the analysts to court to actually testify, which would violate the confrontation clause under Melendez-Diaz ." Counsel also moved for a mistrial because, even if the trial court granted Defendant's Motion to Strike, the evidence was "highly prejudicial" and striking the evidence would not cure that prejudice. On voir dire, Minser testified analysts responsible for generating reports were responsible for:

reviewing everything that comes into that report, which includes looking at the extraction information, looking at the instrumentation, and processing the instrumentation to get into the final data, the final numbers on the report. So the analyst is responsible for the overall making sure everything is legit that goes into this report, but that doesn't mean they're responsible for doing everything.

¶ 12 The trial court denied Defendant's Motion to Strike and Motion for Mistrial. The trial court based its conclusion on a Pennsylvania case, Commonwealth v. Yohe , 621 Pa. 527. 79 A.3d 520 (2013), and the North Carolina Supreme Court's decisions in State v. Ortiz-Zape , 367 N.C. 1, 743 S.E.2d 156 (2013) and State v. Brewington , 367 N.C. 29, 743 S.E.2d 626 (2013).

¶ 13 At the close of the State's evidence, the trial court, on motion by Defendant, dismissed the charge of...