The trial court erred in a sale and delivery of cocaine and possession with intent to sell or
deliver cocaine case by denying defendant's motion for further discovery from the State
concerning the foundation of its expert's opinion as to the testing by the SBI laboratory to
determine the nature of the substance submitted, because: (1) although defendant's oral discovery
requests made at the conclusion of the voir dire hearing were not embodied in his earlier written
motion and were properly denied since they did not comply with N.C.G.S. § 15A-903,
defendant's written discovery motion did comply with this statute; (2) defendant is entitled to
more than just the naked results of the State's laboratory analysis; and (3) although it is beyond
the discovery provisions of N.C.G.S. § 15A-903 to require the State to provide defendant with
information concerning peer review of the testing procedure, whether the procedure has been
submitted to the scrutiny of the scientific community or is generally accepted in the scientific
community, citations to empirical studies supporting the opinion, or citations to articles in
scientific treatises or journals supporting the opinion, the State is required to provide discovery of
data collection procedures requested by defendant.
Attorney General Roy Cooper, by Assistant Attorney General
John F. Oates, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
CALABRIA, Judge.
Wilbert Lester Fair (“defendant”) seeks review of a judgment
entered on jury verdicts finding him guilty of sale and delivery of
cocaine and possession with intent to sell or deliver cocaine.
(See footnote 1)
The court found his prior record level was level IV and sentenced
him as a habitual felon to a term of 107 to 138 months'imprisonment in the North Carolina Department of Correction.
Because we find prejudicial error, we conclude defendant is
entitled to a new trial.
On 20 March 2000, the Hendersonville Police Department
conducted an undercover narcotics investigation. As part of this
investigation, Kimberly Shelton, working as an undercover agent,
purchased two off-white rocks resembling crack cocaine from
defendant for twenty dollars. The substance was sent to the State
Bureau of Investigation (“SBI”) for chemical analysis. Jay
Pintacuda (“Pintacuda”), a chemical analyst employed by the SBI,
determined the substance contained cocaine and weighed .07 grams.
This determination was based on the performance of cobalt
thiocyanate, infrared spectrographic, and gold chloride
crystallography analyses. Pintacuda memorialized the tests he
performed and the results of his testing in a laboratory report.
Prior to trial, the State properly notified defendant of its
intention to introduce the SBI laboratory report into evidence
without further authentication pursuant to N.C. Gen. Stat. §
90-95(g). Defendant filed a written motion for discovery on 12
September 2000 in which he (1) objected to the introduction of the
State's laboratory report pursuant to N.C. Gen. Stat. § 90-95(g),
(2) moved for a pretrial hearing to “evaluate the adequacy of the
foundation of the opinions to be proffered by the State[,]” and (3)
requested that the State disclose the following:
a. A concise and specific statement of each
expert opinion the State intends to introduce;
b. The name, address and curriculum vita [sic]
of each witness the State intends to qualify
as an expert in order to present such opiniontestimony;
c. The scientific or technical foundations of
each opinion, including, but not limited to:
i. Citations to empirical studies
supporting the opinion;
ii. Citations to articles or
chapters in scientific treatises or
journals supporting the opinion;
iii. Data collected by the . . .
witness or those under his/her
supervision, in connection with this
case, including the data collections
instruments used, the data
collection procedures, and the
statistical analysis applied to the
data in forming the opinion to be
proffered.
In response to the motion filed by defendant, the State provided
defendant with a form entitled “Western Regional Lab Analysis
Form,” which listed the tests performed on the substance, the
results of the tests, the analyst, and the analyst's conclusion
that the substance contained a “cocaine base.”
The trial court heard arguments on defendant's motion
immediately before trial on 20 September 2000. The trial court
allowed defendant to voir dire Pintacuda prior to his testimony.
During voir dire, Pintacuda testified concerning the methodology of
the tests performed, the relevant protocols and manuals governing
the tests, and quality control measures. Following the voir dire,
defendant moved that the State be required to provide him with
copies of the quality control manual, accreditations manual, and
DEA training manual. This motion was denied by the trial court.
In his appeal to this Court, defendant asserts in relevant
part that the trial court erred in denying defendant's motion forfurther discovery from the State concerning the foundation of its
expert's opinion as to the testing by the SBI laboratory to
determine the nature of the substance submitted. Specifically,
defendant contends he was entitled to receive protocols,
procedures, and manuals concerning quality control, accreditation,
and training under the rationale of State v. Cunningham, 108 N.C.
App. 185, 423 S.E.2d 802 (1992) and State v. Dunn, 154 N.C. App. 1,
571 S.E.2d 650 (2002), disc. rev. denied, 356 N.C. 685, 578 S.E.2d
314 (2003).
Discovery by a defendant in a criminal case is governed by the
provisions of N.C. Gen. Stat. § 15A-903 (2003). Subsection (e)
deals with reports of examinations and tests and provides, in
relevant part, as follows:
Upon motion of a defendant, the court must
order the prosecutor to provide a copy of or
to permit the defendant to inspect and copy or
photograph results or reports of physical or
mental examinations or of tests, measurements
or experiments made in connection with the
case, or copies thereof, within the
possession, custody, or control of the State,
the existence of which is known or by the
exercise of due diligence may become known to
the prosecutor.
With the exception of evidence falling under the rationale of Brady
v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963), there is no
general right of discovery in criminal cases under the United
States Constitution. Cunningham, 108 N.C. App. at 195, 423 S.E.2d
at 808.
North Carolina General Statutes § 15A-902(a) (2003) requires
that discovery requests must be in writing and filed within the
time periods specified in N.C. Gen. Stat. § 15A-902(d). Defendant's oral discovery requests made at the conclusion of the
voir dire hearing, to the extent they were not embodied in his
earlier written motion, did not comply with this statute and were
properly denied by the trial court. However, defendant's written
discovery motion did comply with this statute.
Under N.C. Gen. Stat. § 15A-903 as construed by this Court's
decisions in Cunningham and Dunn, a defendant is entitled to more
than just the naked results of the State's laboratory analysis.
Under our present statutes and case law a defendant is entitled to
the following discovery:
1. Results or reports of physical or mental
examinations or of tests, measurements or
experiments. N.C. Gen. Stat. § 15A-903(e).
2. Inspection, examination or testing of
physical evidence by the defendant. Id.
3. Tests performed or procedures utilized by
experts to reach their conclusions.
Cunningham, 108 N.C. App. 185, 423 S.E.2d 802.
4. Laboratory protocol documents. Dunn, 154
N.C. App. 1, 571 S.E.2d 650.
5. Reports documenting “false positives” in
the laboratory results. Id.
6. Credentials of individuals who tested the
substance. Id.
The scope of discovery sought by defendant in this case goes far
beyond that allowed under Cunningham and Dunn. Defendant asserts
in his brief:
[The State] did not, however, provide him with
the discovery he requested of information
regarding the procedures used in the tests;
the data derived from the tests or other
materials pertinent to whether the techniques
used have been tested; subjected to peer
review and publication or submitted to the
scrutiny of the scientific community. Nor didthe State provide the requested discovery of
the technique's known or potential rates of
error and general acceptance in the scientific
community.
Defendant thus seeks to expand discovery in criminal cases to
include articles and publications which would cast doubt upon the
scientific validity of the testing procedure and form the basis of
a challenge to the procedure under the rationale of Daubert v.
Merrell Dow, 509 U.S. 579, 125 L. Ed. 2d 469 (1993).
Defendant is entitled to discover the results of the tests and
the manner in which the tests were performed. This information is
necessary for the defendant to understand the testing procedure and
to conduct an effective cross-examination of the State's expert
witness. See Dunn, 154 N.C. App. at 6, 571 S.E.2d at 654.
However, it is beyond the scope of N.C. Gen. Stat. § 15A-903's
discovery provisions to require the State to provide defendant with
information concerning peer review of the testing procedure,
whether the procedure has been submitted to the scrutiny of the
scientific community, or is generally accepted in the scientific
community. It is further beyond the scope of permitted discovery
to require the State to produce citations to empirical studies
supporting the opinion, or citations to articles in scientific
treatises or journals supporting the opinion. This is information
that is not under the control of the State, and is generally
available in the scientific community.
Thus, the trial court erred in not requiring the State to
provide discovery of data collection procedures requested by the
defendant. Such information falls under laboratory protocol
documents held discoverable under Dunn, without which defendantcould not effectively cross-examine the State's expert witness.
This error requires a new trial. Defendant brought forward no
argument concerning the failure of the State to provide a
curriculum vitae of the State's expert or any statistical analysis;
therefore, these matters are not before us.
New trial.
Judges McGEE and STEELMAN concur.
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