State v. Sasek
| Decision Date | 19 May 2020 |
| Docket Number | No. COA19-770,No. COA19-769,COA19-769,COA19-770 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. SCOTT EDWARD SASEK, Defendant. |
Yancey County, No. 16 CRS 50463-64, 17 CRS 50260, 18 CRS 000131-32
Appeal by Defendant from judgments entered 22 March 2019 by Judge Gary M. Gavenus in Yancey County Superior Court. Heard in the Court of Appeals 31 March 2020.
Attorney General Joshua H. Stein, by Assistant Attorneys General Allison A. Angell and Barry H. Bloch, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love, for Defendant.
Scott Edward Sasek ("Defendant") appeals from the trial court's judgments convicting him of possession with intent to sell or deliver a schedule II controlled substance and sale of methamphetamine, and subsequently revoking his probation. Defendant contends that the trial court committed plain error by admitting expert testimony without first ensuring that it was achieved by reliable principles and methods. Defendant further contends that there was no justifiable reason for the trial court's delay in holding his probation revocation hearing. After careful review, we find no plain error in Defendant's convictions, but vacate the trial court's judgments revoking Defendant's probation.
In July 2016, prior to the events of this case, Defendant pleaded guilty to charges of obtaining property by false pretenses. The court sentenced Defendant to 8 to 19 months imprisonment, suspended upon completion of 18 months of supervised probation to expire in January 2018.
On 15 February 2017, a confidential informant for the Yancey and Mitchell County Sheriff's Offices ("YMCSO") allegedly purchased methamphetamine from Defendant outside of a department store in Yancey County.
The YMCSO had previously worked with the informant "25 or 50 times" since January 2017. On February 15, the informant informed an officer with YMCSO that he had a lead to buy methamphetamine from Defendant. The informant and the officer arranged for a controlled buy to occur later that day in a department store parking lot.
The informant met with Defendant in the parking lot and conducted the purchase with money provided by the YMCSO. After completing the transaction, the informant met with an officer and handed him a clear plastic baggie containing aclear crystal substance "that [he] got from [Defendant]." The officer searched the informant and discovered that he no longer had the money provided for the buy.
Probation violation reports were filed against Defendant on 17 May 2017 and 3 January 2018, each alleging that Defendant violated the terms of his probation by failing to "[c]ommit no criminal offense in any jurisdiction." Defendant was later indicted on 27 November 2017 and 29 May 2018 with a number of crimes related to the controlled buy of methamphetamine.
Defendant's charges came on for trial on 18 March 2019. At trial, Ms. Deborah Chancey of the North Carolina State Crime Lab presented testimony about her examination of the contents of the plastic baggie the informant received from Defendant. Chancey was admitted as an expert in drug chemistry without objection following a series of questions regarding her nearly ten years of experience as a Crime Lab employee. Chancey explained that the general procedure for testing unknown substances involves a series of preliminary tests to "indicate the class of drug that may be present," followed by confirmatory testing. Consistent results across multiple tests indicate the type of substance in the sample.
Chancey testified that, for this case, she was asked to test a plastic baggie containing 2.69 grams of a crystalline substance for the presence of a controlled substance. Chancey first conducted a preliminary color test, which produced"inconclusive" results. Chancey then performed an infrared test, which indicated the substance was primarily a diluent, "not a controlled substance." Next, Chancey performed a "gas chromatography mass spectrometer" test (the "GCMS test") on the substance. In a GCMS test, Chancey explained, the molecules in a substance are separated, timed as they pass through a gas column, and then bombarded into fragments by electrons. The examiner then performs a "visual comparison, a peak-to-peak analysis" of the sample's fragmentation patterns produced by the GCMS test versus a known standard pattern for a controlled substance.
Chancey then began to explain how she applied the GCMS testing methods on the sample in this case, and the result she obtained, but the State interrupted her testimony to inquire about the recognition of GCMS testing in the scientific community. Chancey testified that GCMS testing was well-respected in the scientific community and confirmed that she had recorded the results of her testing in this case in a lab report. The lab report was then admitted into evidence without objection. Following the admission of her lab report, Chancey testified without objection that it was her opinion that the substance the informant received from Defendant "was material containing methamphetamine, Schedule II."
At the close of the State's evidence, Defendant moved to dismiss all charges for insufficient evidence, and the trial court denied Defendant's motions. Defendant did not put on evidence.
The jury convicted Defendant of possession of methamphetamine, possession with intent to sell or deliver a schedule II controlled substance, sale of methamphetamine, and delivery of methamphetamine. Defendant then pleaded guilty to having attained habitual felon status.
Prior to sentencing, Defendant admitted that he failed to "[c]ommit no criminal offense" in violation of his probation, as alleged in the 17 May 2017 violation report. The trial court then found that Defendant had violated his probation based solely on the methamphetamine-related violation alleged in the 17 May 2017 violation report.
As part of Defendant's habitual felon plea, the parties agreed that any sentences activated as a result of Defendant's revocation of probation would run concurrently with sentences imposed by the jury's verdicts. The trial court sentenced Defendant to 84 to 113 months imprisonment for possession with intent to sell or deliver a schedule II controlled substance; 96 to 131 months imprisonment for sale of methamphetamine, to run consecutively; and reactivated the suspended sentence of 8 to 19 months imprisonment for violation of probation, to run concurrently. The court arrested judgment on Defendant's remaining convictions. Defendant gave notice of appeal in open court.
Defendant presents two arguments arising from the 18 March 2019 trial: (1) the trial court erred by allowing Chancey to present her expert opinion without proper foundation; and (2) there was no justifiable reason for the trial court's delay in holding Defendant's probation revocation hearing after his probation expired. We address each issue in turn.
Defendant challenges the trial court's admission of Chancey's expert opinion that the baggie the informant received from Defendant contained methamphetamine, a schedule II controlled substance. However, Defendant made no objections at trial during any stage of Chancey's testimony. Trial judges have a special obligation to ensure that expert testimony "is not only relevant, but reliable[,]" but "an unpreserved challenge to the performance of a trial court's gatekeeping function in admitting opinion testimony in a criminal trial is subject to plain error review in North Carolina state courts." State v. Hunt, 250 N.C. App. 238, 245-46, 792 S.E.2d 552, 558-59 (2016). Plain error review requires a showing by the defendant that a "fundamental error occurred at trial" which "had a probable impact on the jury's finding that the defendant was guilty." State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation marks omitted).
Proof that the substance at issue is a controlled substance is a requisite element for the crimes of possession with intent to sell or deliver a schedule IIsubstance and sale of methamphetamine. See State v. Bridges, 257 N.C. App. 732, 733, 810 S.E.2d 365, 367, review denied, 371 N.C. 339, 813 S.E.2d 856 (2018); N.C. Gen. Stat. § 90-95(a)(1) (2017). Methamphetamine is a schedule II controlled substance in North Carolina. N.C. Gen. Stat. § 90-90(3)(c) (2017). "[T]he burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution." State v. Ward, 364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010). Expert witness testimony describing "some form of scientifically valid chemical analysis" is ordinarily necessary to identify a controlled substance, unless the State can show beyond a reasonable doubt that some other method of identification is sufficient. Id.1
Rule 702 of the North Carolina Rules of Evidence states that "if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," the testimony of an expert witness as to his or her opinion is admissible if the following can be shown:
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2017). Application of this "three-pronged reliability test" is a preliminary question to be determined at the discretion of the trial court, reversible only upon a showing that the court abused its discretion. State v. McGrady, 368 N.C. 880, 892-893, 787 S.E.2d 1, 10-11 (2016). Where the State seeks to prove the identity of a controlled substance via expert testimony, such testimony is admissible only when it is "based on a scientifically valid chemical...
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