State v. Ward

BRADY, Justice.

Justice NEWBY dissenting.

In this case the trial court properly exercised its discretion to admit an expert's testimony that, based on a visual examination and comparison with a medical publication, pills seized from defendant contained controlled substances. However, the majority concludes that the expert's method of visually identifying controlled substances is unreliable and that the trial court's decision to the contrary was an abuse of discretion. The majority's approach alters the law of this state as it pertains to the admission of expert opinion testimony. Accordingly, I respectfully dissent.

Special Agent Allcox of the State Bureau of Investigation ("SA Allcox") is an expert in forensic chemistry and drug analysis. He has two degrees in science, including a chemistry degree from North Carolina State University. The courses of study leading to these degrees included instruction in quantitative analysis of physical chemistry, general chemistry, organic chemistry, and qualitative analysis. In addition to his formal scientific education, SA Allcox has investigated and analyzed drugs in a professional capacity for over thirty-four years. Using this considerable education and experience, SA Allcox identified the pills seized in this case and determined that the majority of those pills contained controlled substances.

SA Allcox used a two step visual identification method to determine the composition of some of the pills seized from defendant. First, utilizing his education, training, and experience, SA Allcox examined the item and made notes of its pharmaceutical markings, its appearance, its color, its size, and its shape, and compared his findings to "a listing of all the pharmaceutical markings [used] to identify" a pill in the Micromedex publication. Second, after identifying the pill, SA Allcox determined its chemical composition from the Micromedex publication.

SA Allcox explained that the SBI laboratory normally uses this visual identification method to analyze pills in misdemeanor cases. It does so because the laboratory does not have the resources to conduct a chemical analysis of every item submitted. The SBI laboratory uses chemical analyses in its other cases to ensure that more of its resources are devoted to the more serious offenses, such as those involving cocaine and opium derivatives. SA Allcox explained that despite the lack of chemical analysis the method of visually identifying pills is reliable and proven.Page 150

SA Allcox testified that the medical industry believes that visual identification is a reliable method of determining a pill's chemical composition. He stated that "doctors in hospitals and pharmacies" rely on Micromedex "to identify prescription medicine." SA Allcox also explained that pharmacists dispense pills "based upon the markings that are on the drug" and that to identify those pills, pharmacists use the same Micromedex database that is used by the SBI laboratory. The clear implication from this testimony is that medical professionals believe this visual identification method is sufficiently reliable to stake their professional licenses, reputations, and patients' well-being on the accuracy and reliability of its results.

Furthermore, SA Allcox indicated that the SBI itself believes this method is reliable. SA Allcox stated that the SBI laboratory has used Micromedex "for the 35 years that [he has] been associated with the crime laboratory" and trusts the accuracy of the results achieved using it. His testimony further demonstrates this belief. After visually examining the pills in State's Exhibit 26-B-2, SA Allcox determined from Micromedex that the pills were Carisoprodol, which contains no controlled substances. Once he made this conclusion he conducted no further testing on these pills.

SA Allcox testified that the possibility of counterfeit pills does not render the visual identification method unsound or unreliable. SA Allcox explained that generally, he sees prescription tablets frequently and "test[s] them . . . on a daily basis in the crime laboratory." Further, SA Allcox indicated that he is aware of counterfeit pharmaceutical pills and stated that in his time with the SBI he has seen such pills. However, SA Allcox also explained that the "pharmaceutical industry is very closely regulated" and genuine "pharmaceutical tablets are very uniform in size and appearance and color." On the other hand, SA Allcox recalled that his experience had shown counterfeit tablets to be "very mismatched [and] not uniform in appearance." Regarding the tablets examined in this case, SA Allcox said they appear to be authentic. Generally, as noted by the majority, defendant conceded the authenticity of "most of the seized items."

Before an expert's opinion is admissible at trial, the trial court must conclude the expert's "method of proof is sufficiently reliable.Howertonv. Aral Helmet, Ltd.,358 N.C. 440,458,597 S.E.2d 674,686(2004) (citingState v. Goode,341 N.C. 513,527-29,461 S.E.2d 631,639-40(1995)). That determination is a "preliminary, foundational inquiry,"id.at 460,597 S.E.2d at 687, consistent with our trial courts' responsibility under the Rules of Evidence to decide "preliminaryPage 151questions concerning . . . the admissibility of expert testimony,"id.at 458,597 S.E.2d at 686(citing N.C.G.S. §8C-1, Rule 104(a) (2003)). In performing this task "trial courts are afforded wide latitude of discretion" that will be upset on appeal only if the trial court abuses its discretion.Id.(citations and internal quotation marks omitted).

InState v. Goodethis Court recognized that to be admissible an expert's method of proof must be sufficiently reliable.341 N.C. 513,527-29,461 S.E.2d 631,639-40. A trial court may consider expert testimony related to reliability, take judicial notice of the method's reliability, or rely on some combination of the two to make its decision.Id.at 530,461 S.E.2d at 641(citations omitted). InGoodethe trial court heard testimony from the State's proffered expert regarding the reliability of bloodstain pattern interpretation.Id.We determined that the expert's testimony was sufficient to satisfy our reliability standard.Id.Additionally, we noted that our appellate courts had previously "implicitly accepted bloodstain pattern interpretation as a scientific method of proof."341 N.C. at 530-31,461 S.E.2d at 641. Accordingly, we determined that the trial court properly admitted expert testimony interpreting bloodstain patterns from a crime scene.Id.at 524, 530-31,461 S.E.2d at 637-38,641-42.

Several years later, inHowerton v. Arai Helmet, Ltd., we examined the reliability standard ofGoodeand compared it with the reliability standard under the federal evidentiary rules to determine whether the standards are the same. Ultimately, we concluded that our trial courts are not required to thoroughly scrutinize an expert's scientific method like the Supreme Court of the United States required of federal trial courts inDaubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579,113 S. Ct. 2786,125 L. Ed. 2d 469(1993).Howerton,358 N.C. at 455-69,597 S.E.2d at 684-93. WhileDaubertrequired federal trial courts to determine,inter alia, whether an expert's method of proof is "`scientifically valid,'"id.at 456,597 S.E.2d at 685(quotingDaubert,509 U.S. at 592-93,113 S. Ct. at 2796,125 L. Ed. 2d at 482), theGoodestandard requires our trial courts to inquire only into the "basic methodological adequacy" of an expert's method of proof,id.at 460,597 S.E.2d at 687.

Perhaps most importantly, we emphasized that theGoodestandard does not require an expert's method "to be proven conclusively reliable or indisputably valid."Id.We explained there is a "fundamental distinction between the admissibility" and the credibility of evidence.Id.(citingQueen City Coach Co. v. Lee,218 N.C. 320,323,11 S.E.2d 341,343(1940)). We recognized that even after satisfyingPage 152our admissibility standard, there may be "lingering questions or controversy concerning the quality of the expert's conclusions," but added that those matters affect the testimony's weight and credibility, not its admissibility.358 N.C. at 461,597 S.E.2d at 688(citations omitted). We reminded the bench and the bar that "`[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'"Id.(quotingDaubert,509 U.S. at 596,113 S. Ct. at 2798,125 L. Ed. 2d at 484) (alteration in original).

The standard of reliability for admitting expert testimony in our trial courts was illustrated just last year inCrocker v. Roethling,364 N.C. 140,675 S.E.2d 625(2009).⁶In that case the plaintiffs sought to demonstrate that the defendant medical doctor breached the applicable "same or similar community" standard of care when he failed to perform a Zavanelli maneuver during delivery of their daughter.363 N.C. at 141,675 S.E.2d at 627(Hudson Timmons-Goodson, JJ.). The trial court excluded testimony from the plaintiffs' expert, John P. Elliott, M.D., as it appeared that he was "insufficiently familiar" with the applicable standard of care,id.at 143,675 S.E.2d at 628, and that he failed to demonstrate a reliable method by which he formed his opinion on the content of the applicable standard of care,364 N.C. at 158,675 S.E.2d at 637-38(Newby, J., Parker, C.J. Brady, J., dissenting).

This Court reversed the exclusion of that testimony even though "Dr. Elliott had never practiced in Goldsboro and admitted in his deposition that he had never even practiced in a community similar to Goldsboro."Id.at 160,675 S.E.2d at 639. Further, Dr. Elliott testified at his deposition that he "had never performed the Zavanelli maneuver, nor had he ever observed it performed during his twenty-four years of practice in Phoenix."Id.at 150-51,675 S.E.2d at 633(Martin Edmunds, JJ., concurring). In fact, he formed his opinion "in part on a worldwide study that found only about one hundred reported cases in which the Zavanelli maneuver was used between 1985, when the maneuver was first mentioned in medical literature, and 1997, four years before [plaintiffs' daughter's] birth."Id.at 162,675 S.E.2d at 640(Newby, J., dissenting).Page 153

In reversing the trial court's decision excluding the expert's opinion, the opinions composing the majority emphasized that the threshold reliability standard in this state is not exacting. Justice Hudson's opinion indicated that the threshold admissibility standard is met if the expert asserted familiarity with the applicable standard of care.Id.at 148,675 S.E.2d at 631(Hudson, J.). Justice Martin's opinion echoed that sentiment, stating that the foundational inquiry does not require conclusive reliability.Id.at 149,675 S.E.2d at 632(Martin, J., concurring). Justice Martin's opinion explained that "[e]vidence may be ` "`shaky but admissible,'"` and it is the role of the jury to make any final determination regarding the weight to be afforded to the evidence."Id.at 150,675 S.E.2d at 632(quotingHowerton,358 N.C. at 460-61,597 S.E.2d at 687-88).

Additionally, the Court made clear that there is no particular scientific method required to satisfy the reliability standard ofGoode.Justice Hudson's opinion explained that "our statutes [and] case law . . . do [not] prescribe any particular method by which a medical doctor must become `familiar' with a given community. Many methods are possible, and our jurisprudence indicates our desire to preserve flexibility in such proceedings."Id.at 147,675 S.E.2d at 631(Hudson, J.). The other two opinions agreed.Id.at 151,675 S.E.2d at 633(Martin, J., concurring);id.at 158,675 S.E.2d at 637(Newby, J., dissenting).

Finally, the opinions composing the majority reminded our trial courts that they should not exercise their discretion in a manner that excludes "shaky" expert testimony. Justice Hudson's opinion stated that this Court has "cautioned trial courts against `asserting sweeping pretrial "gatekeeping" authority . . . [which] may unnecessarily encroach upon the constitutionally-mandated function of the jury to decide issues of fact and to assess the weight of the evidence.'"Id.at 147-48,675 S.E.2d at 631(Hudson, J.) (citations omitted). Similarly, Justice Martin's opinion emphasized the distinction this Court drew inHowertonbetween the stringent federal standard and our flexible standard that preserves the constitutional role of the jury.Id.at 150,675 S.E.2d at 632-33(Martin, J., concurring).Crockerdemonstrates the reliability of SA Allcox's method in the casesub judice.InCrockerthe expert's testimony was markedly less reliable than SA Allcox's testimony. The expert inCrockerhad never performed or seen a Zavanelli maneuver during roughly twenty-five years of practice. This patent lack of experience notwithstanding, this Court concluded that the trial court committed reversible errorPage 154by excluding his testimony opining that such a maneuver was part of the standard of care for a medical doctor practicing in Goldsboro because, in part, a study found that roughly ten Zavanelli maneuvers were performed worldwide each year between 1985 and 1997.See363 N.C. at 162,675 S.E.2d at 640(Newby, J., dissenting). If the trial court inCrockercommitted reversible error by excluding the expert's testimony, then SA Allcox's method of proof — utilizing over thirty-four years of experience in performing an analysis relied upon by both law enforcement and medical professionals — is sufficiently reliable under theGoodestandard. If visual identification is sufficiently reliable in potentially life-and-death scenarios, it is difficult to fathom how the majority concludes the method is legally inadequate.

Furthermore, our recent decision inState v. Llamas- Hernandez, reversing the decision of the Court of Appeals "[f]or the reasons stated in the dissenting opinion,"363 N.C. 8,673 S.E.2d 658(2009), demonstrates that the trial court here did not abuse its discretion. InLlamas-Hernandezthe dissenting opinion determined that the trial court abused its discretion when it allowed a police detective to provide lay opinion testimony that non-descript white powder was cocaine.189 N.C. App. 640,651,654,659 S.E.2d 79,86,88(Steelman, J., concurring in part and dissenting in part).

The dissenting judge inLlamas-Hernandezoffered several reasons for his conclusion. First, his opinion explains that, because our General Statutes contain technical definitions of controlled substances and procedures for admitting and allowing access to laboratory reports, expert testimony (rather than lay testimony) is needed to prove the existence of a controlled substance.Id.at 652-53,659 S.E.2d at 86-87(citations omitted). Second, the dissenting judge opined that the white powder had no characteristics that could be distinguished by sight. The dissenting opinion explained that while crack cocaine "pills" may be susceptible to visual identification because of their "distinctive color, texture, and appearance,"id.at 654,659 S.E.2d at 87, powdered cocaine is "a non-descript white powder" not conducive to a visual identification,id.The dissenting opinion's reasoning was consistent with long-standing precedent regarding the visual identification of controlled substances.See State v. Fletcher,92 N.C. App. 50,56-58,373 S.E.2d 681,685-86(1988) (upholding the trial court's admission of expert testimony based on a visual examination that a substance was marijuana while stating that evidence of a chemical analysis would be entitled to greater weight).Page 155

In the casesub judice, an expert visually identified controlled substances with distinguishing characteristics. It is already established that SA Allcox is a qualified expert. Furthermore, SA Allcox explained that the manner in which he performed his analysis was to first "make notes of its pharmaceutical markings, its appearance, its color, its size, and its shape." These are all distinctive characteristics. SA Allcox would then locate the matching tablet in the Micromedex publication, from which he learned the "contents, the manufacturer and the type of substances in the tablets." In other words, SA Allcox described to the trial court the manner in which he used his experience and credentials to not only ascertain the distinctive characteristics of the pills he was examining and then determine their composition from Micromedex, but also to ensure that the pills were not counterfeit. As such, the trial court soundly exercised its discretion.

The majority's decision to the contrary significantly alters the law of this state as it pertains to the admission of expert testimony. At the outset, the majority's holding is essentially contrary to a point on which this Court unanimously agreed inCrocker: that because theGoodestandard can be satisfied in any number of ways, trial courts should not lightly dismiss a particular method.Crocker, 364 N.C.. at 147,675 S.E.2d at 631(Hudson, J.);id.at 151,675 S.E.2d at 633(Martin, J., concurring);id.at 158,675 S.E.2d at 637(Newby, J., dissenting). However, today the majority determines that "[u]nless the State establishes . . . another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required." This holding expressly limits the manner in which an expert may arrive at his or her opinion, in direct contradiction of this Court's statements inCrocker.

Further, the majority's decision appears to raise the threshold for the admission of expert testimony from the level established inCrocker.InCrockerwe determined that the trial court erred by excluding expert testimony regarding the propriety of a rarely used procedure in a small community from an expert who utilized no relevant experience in his method of proof. Yet here the Court concludes that an expert's method of proof is unreliable despite his many years of experience performing the method and its use in the medical community. Such a conclusion most assuredly raises the admissibility standard from where it stood afterCrocker.

Perhaps most significantly, the majority changes the foundational inquiry our trial judges must conduct prior to admitting an expert'sPage 156opinion. InHowertonwe explained that the federal trial courts are required to thoroughly scrutinize and determine that an expert's method of proof is "scientifically valid" before admitting that opinion.358 N.C. at 456,597 S.E.2d at 685(quotingDaubert,509 U.S. at 592-93,113 S. Ct. at 2796,125 L. Ed. 2d at 482). We then distinguished our approach as "decidedly less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach."Id.at 464,597 S.E.2d at 690(citation and internal quotation marks omitted). Despite this illustration, the majority today emphasizes on several occasions that the trial court abused its discretion by admitting the expert's opinion in this case because the expert's method of proof is not "scientifically valid." Accordingly, it seems the majority's decision has altered the inquiry our trial courts must conduct.

The majority's attempt to use the present case's status as a criminal prosecution to justify its decision is unpersuasive. There is only one evidentiary standard for expert testimony.SeeN.C.G.S. §8C-1, Rule 702 (2009). Further, we relied uponGoode, a criminal case, to provide our admissibility framework inHowertonandCrocker, both civil cases. The majority approves of such interchangeable use because its opinion relies uponGoode, Howerton, andCrocker.Nonetheless, the majority relies on Confrontation Clause cases to support its conclusion that SA Allcox's method of proof "is not sufficiently reliablefor criminal prosecutions." (Emphasis added.) The majority advances as the purpose of the Confrontation Clause to "`ensure reliability of evidence.'" (QuotingCrawford v. Washington,541 U.S. 36,61,124 S. Ct. 1354,1370,158 L. Ed. 2d 177,199(2004).) The majority opinion correctly recites the Clause's purpose, but misses its focus. The Confrontation Clause is a "procedural. . . guarantee."Crawford,541 U.S. at 61,124 S. Ct. at 1370,158 L. Ed. 2d at 199. Those accused of criminal offenses are entitled to cross-examine the witnesses against them. This is the same procedural protection we afford in regard to all expert witnesses. As we said inHowerton, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."358 N.C. at 461,597 S.E.2d at 688(citations and internal quotation marks omitted) (alteration in original). Therefore, whether a case is criminal or civil in nature does not change the tenet that cross-examination is properly used to illustrate to the jury an opinion's shortcomings. However, the Confrontation Clause should not prevent the jury from considering the opinion altogether.Page 157

Moreover, the majority's attempt to justify its reasoning by noting the allegedly increasing incidents of counterfeit pharmaceutical drugs is similarly unavailing. Initially, there is some question regarding the propriety of reversing a discretionary decision of a trial court in reliance upon facts not presented to the trial court and that are not part of the record on appeal. In any event, the majority's creation of a prophylactic measure intended to prevent confusing a fake controlled substance with the genuine article is unwarranted. The General Assembly has provided a mechanism for a defendant to obtain evidence against him and have it tested. N.C.G.S. §15A-903(a)(1) (2009). A defendant simply has to ask the trial court to order the State to produce the physical evidence, and the court must do so.Id.As the General Assembly has enacted this safeguard, the majority's attempt to use this case's classification as a criminal prosecution to justify its alteration of our evidence law is unfounded.

The majority concedes that the medical profession uses the Micromedex publication to identify medications when accurate identification could mean the difference between life and death. Yet the majority concludes that an expert opinion based on Micromedex is not sufficiently reliable to even be presented aspotentiallypersuasive evidence to a criminal jury. Notwithstanding the majority's implications to the contrary, I believe that the medical profession's desire for appropriate diagnosis and treatment is as significant as that of our judicial system for accurate verdicts.

Whereas the majority concludes that the trial court's decision lacked a basis in reason, I believe the trial court exercised its discretion in a manner that comports with the law of this state regarding admission of expert testimony. Accordingly, I respectfully dissent.