An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-289
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 7 January 2014

STATE OF NORTH CAROLINA

      v.                                      Guilford County
                                              No. 10CRS078622

TYRONE ORLANDO QUICK



      Appeal by defendant from judgment entered 3 August 2012 by

Judge John O.        Craig, III     in Guilford       County Superior Court.

Heard in the Court of Appeals 9 October 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      J. Aldean Webster, III, for the State.

      Anna S. Lucas for defendant-appellant.


      HUNTER, Robert C., Judge.


      Tyrone Orlando Quick (“defendant”)               appeals from judgment

sentencing     him   to   70   to   84   months    imprisonment      after    being

convicted on one count of possession with intent to sell or

deliver heroin and one count of trafficking heroin.                    On appeal,

defendant argues that: (1) the trial court committed plain error

when it admitted a chemical analyst’s testimony that did not

meet the standards under amended North Carolina Rule of Evidence
                                         -2-


702 or the previous standard under                   Howerton v.      Arai Helmet,

Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004), and (2) defendant’s

trial    counsel’s    failure      to   object      to   the   chemical    analyst’s

identification of the substance was in violation of defendant’s

right    to     effective    assistance        of   counsel     under     the   Sixth

Amendment.       After careful review, we find no error.

                                   Background

       The evidence presented at trial tended to establish the

following facts:       On 27 May 2010, Detective Curtis Cheeks of the

High Point Police Department Vice and Narcotics Unit (“Detective

Cheeks”) obtained a search warrant for the residence located at

500 Forest Street in High Point, North Carolina.                          Later that

same    morning,     Detective     Cheeks,      with     the   support     of   other

officers,       executed    the   search   warrant.        While     searching    the

residence, an officer discovered a substance he believed to be

heroin located in the living room mini blinds.                   Detective Cheeks

also    found    several    cellophane     wrappers,       stamped    baggies,    the

stamp itself, and a digital scale.

       The evidence found at the scene was gathered, processed,

and sealed in envelopes pursuant to the quality control measures

of the High Point Police Department.                 The substance believed to

be heroin was later found to weigh 4.82 grams.                   After collection

of the evidence, Natasha Burns, the owner of the house, and

defendant, who was visiting at the time the search warrant was
                                         -3-


executed, were arrested and transported to the High Point Police

Department.       The substance gathered at the crime scene was later

delivered in its sealed package to                 Trot Raney (“Raney”), an

employee of the NarTest Company, to conduct analytical testing

and identification of the substance.

      On 7 September 2010, defendant was indicted on charges of

trafficking in a controlled substance and possession with intent

to manufacture, sell, and deliver a controlled substance.                            The

matter came on for trial in Guilford County Superior Court on 31

July 2012.    Raney was tendered by the State as an expert in the

field of forensic chemistry, specializing in the analysis and

identification of controlled substances.                       He was subsequently

certified    as    an   expert    in   the     field    with    no     objection   from

defendant.        Following      his   certification       as    an    expert,     Raney

testified as to his methods and procedures as follows:

            Q:   All right. And what was the purpose of
            your examination?

            A: To determine the content of the plastic
            bag that I received from High Point.

            Q: How did you go             about        doing    that    for
            State’s Exhibit 4.

            A: Well, first thing I did was to verify
            that the package was sealed correctly on the
            initialed package. Then after that I removed
            the contents to verify that what was listed
            as being contained in this envelope were, in
            fact, what was there. And then I removed the
            material and weighed the contents of it,
            recorded that weight.
                                    -4-



          Q. And then       what    do    you   do   after    you
          weigh[ed] it?

          A. Then I took and crushed up a bunch of the
          material so I could get a homogenous mixture
          of it.   After doing that weight I ran two
          color tests, the crystal test and a mass
          spec test.

          Q. And as a result of those tests and your
          analysis, were you able to form a specific
          opinion about what the substance contained
          in what’s been marked as State’s Exhibit 4
          is or contained?

          A. Yes, ma’am.

          Q. And what is that opinion?

          A.   It’s    a   schedule           one    controlled
          substance[,] heroin.

No objection was made by defendant as to the admissibility of

Raney’s testimony.

    The   jury   later   found    defendant     guilty   on   one   count   of

trafficking heroin and one count of possession with intent to

sell or deliver heroin.     Defendant was sentenced to a minimum of

70 months imprisonment and a maximum of 84 months imprisonment.

Defendant gave oral notice of appeal in open court.

                                 Discussion

                 I. Admission of Expert Testimony

    Defendant argues that the trial court committed plain error

when it admitted the chemical analyst’s testimony that did not

meet the standards under North Carolina Rule of Evidence 702.
                                     -5-


Specifically,       defendant     contends      the    chemical    analyst’s

testimony met neither the reliability standard set forth under

Rule 702(a) as amended on 1 October 2011 nor the former Rule

702(a) as interpreted by our Supreme Court in Howerton.                     We

disagree.

    “[A]    trial    court’s     ruling    on   the   qualifications   of   an

expert or the admissibility of an expert’s opinion will not be

reversed on appeal absent a showing of abuse of discretion.”

Howerton, 358 N.C. at 458, 597 S.E.2d at 686.               Since defendant

failed to object to the admission of the chemical analyst’s

testimony during trial, we review his challenge to the admission

for plain error.      See State v. Mendoza, 206 N.C. App. 391, 395,

698 S.E.2d 170, 174 (2010).            “For error to constitute plain

error, a defendant must demonstrate that a fundamental error

occurred at trial.”       State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012).         “To show that an error was fundamental,

a defendant must establish prejudice—that, after examination of

the entire record, the error had a probable impact on the jury’s

finding that the defendant was guilty.”               Id.   (quotation marks

omitted).

    The rule governing the admissibility of expert testimony in

North Carolina prior to 1 October 2011 was expressed in N.C.

Gen. Stat. § 8C–1, Rule 702(a) which stated “[i]f scientific,

technical or other specialized knowledge will assist the trier
                                          -6-


of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify . . . .” N.C.

Gen. Stat. § 8C–1, Rule 702(a) (2011) (amended October 1, 2011).

Based on this statute, our Supreme Court in Howerton, 358 N.C.

at 458, 597 S.E.2d at 686, devised a three-part test for the

admissibility of expert testimony which has trial courts ask:

“(1)   Is    the    expert’s    proffered       method       of   proof    sufficiently

reliable as an area for expert testimony? (2) Is the witness

testifying     at     trial    qualified   as     an    expert      in    that   area   of

testimony? (3) Is the expert’s testimony relevant?”

       The    North    Carolina    General       Assembly         later   amended     Rule

702(a),      adding    language    similar      to     the   corresponding       federal

rule of evidence.             State v. Gamez, __ N.C. App. __, __, 745

S.E.2d 876, 878 (2013).             As amended, Rule 702(a) states that

expert testimony is admissible if “all of the following apply:

(1) [t]he testimony is based upon sufficient facts or data[;]

(2) [t]he testimony is the product of reliable principles and

methods[;]      (3)    [t]he    witness    has    applied         the    principles     and

methods reliably to the facts of the case.”                        N.C. Gen. Stat. §

8C–1, Rule 702(a) (2012).           The provisions of amended Rule 702(a)

became effective 1 October 2011 and “appl[y] to actions arising

on or after that date.”            Gamez, __ N.C. App. at __, 745 S.E.2d

at 878; 2011 N.C. Sess. Law ch. 283, § 4.2.
                                       -7-


      Defendant    first    argues     that   the     trial   court    erred       by

admitting    the   expert’s     testimony     under      amended    Rule    702(a).

However, this Court recently held that the proper trigger date

for applying amended Rule 702(a) is not the date of the trial

but “the date that the bill of indictment was filed.”                  Gamez, __

N.C. App. at __, 745 S.E.2d at 878-79.              Here,        defendant        was

indicted on 7 September 2010, which is before 1 October 2011,

when amended Rule 702(a) came into effect.                 Therefore, we apply

Howerton’s    three-prong       test   interpreting       Rule     702(a)    as   it

existed prior to 1 October 2011 to assess the trial court’s

admission of evidence in this case, not amended Rule 702(a).

      Defendant argues that even if amended Rule 702(a) does not

apply here, the expert’s testimony was inadmissible under the

Howerton test.     Specifically, defendant argues that the expert’s

proffered method of proof was not sufficiently reliable as an

area for expert testimony because it did not provide a thorough

explanation of the handling of the substance, the acceptability

of the measures in the scientific community, or whether the

procedures were the same as those Raney used while at the SBI.

We find that defendant’s argument is without merit.

      To satisfy the first prong of the Howerton test, whether

the expert’s proffered method of proof is sufficiently reliable,

“a   court   may   look    to   testimony     by    an    expert    specifically

relating to the reliability, may take judicial notice, or may
                                            -8-


use a combination of the two.”                   Howerton, 358 N.C. at 459, 597

S.E.2d at 687 (quotation marks omitted).                    When a court is faced

with    unproven     scientific        methods      or    techniques,          it     should

“generally      focus      on    the   following      nonexclusive        ‘indices         of

reliability’[:] the expert’s use of established techniques, the

expert’s professional background in the field, the use of visual

aids . . . and independent research conducted by the expert.”

Id. at 460, 597 S.E.2d at 687 (citations omitted).                                  However,

“when specific precedent justifies recognition of an established

scientific theory or technique advanced by an expert, the trial

court    should      favor      its    admissibility,          provided        the    other

requirements of admissibility are likewise satisfied.”                               Id. at

459,    597   S.E.2d    at      687.      When    there   is    an    absence        of   new

evidence      challenging       methods     previously      held     to   be    reliable,

there    is    no   need     for   the      trial   court      to    re-establish         the

reliability of such methods in every case.                     Taylor v. Abernethy,

149 N.C. App. 263, 274, 560 S.E.2d 233, 240 (2002) (holding that

handwriting analysis testimony was admissible because numerous

courts held it was reliable in past cases).

       In support of his argument, defendant relies on State v.

McDonald, __ N.C. App. __, 716 S.E.2d 250 (2011), involving the

same expert, Raney, testifying as to his methods of identifying

a   controlled      substance.         In    McDonald,      Raney     provided       expert

testimony held by this Court to be sufficiently reliable where
                                       -9-


he testified as to the precautionary measures taken during the

tests,     the   acceptance     of    the    methods    in   the    scientific

community, and his use and training with the equipment used to

perform the tests.        Id. at __, 716 S.E.2d at 254.

       In the present case, Raney’s testimony does not rise to the

level of detail provided in McDonald.            Raney did not thoroughly

explain the precautionary methods he employed in performing the

tests nor did he testify as to the acceptance of the methods in

the scientific community.            Raney stated only that he verified

the package was correctly sealed, verified the contents, weighed

the contents, crushed the substance into a homogenous mixture,

and then performed a series of tests on the substance.                   These

tests included two color tests: a crystal test and a mass spec

test.     Raney did not explain how either test worked; he merely

said that he conducted them.

       In addition to naming the specific tests he used, Raney

also testified that he was previously employed as an agent for

the SBI and attended multiple training sessions in the field of

drug     analysis   and    identification.       This    training     included

courses in infrared spectrometry and mass spec training, which

were the tests used to identify the substance in this case.

Raney testified that he has worked over 50,000 cases during his

career and has been certified as an expert in drug analysis and

identification in over 900 state, federal, and military cases.
                                            -10-


       Raney used methods to test the substance that are not novel

or unproven but have been allowed by numerous courts in the past

as means of identifying controlled substances.                     See, e.g., State

v. Hough, 202 N.C. App. 674, 680-82, 690 S.E.2d 285, 290-91

(2010) (finding no error where the expert analyst conducted a

color    test    and       mass    spec      test     to   identify    a    controlled

substance); State v. Tripp, 74 N.C. App. 680, 684, 329 S.E.2d

710, 713 (1985) (finding no error where Raney had conducted two

color   tests,       an   IR    test   and    mass    spec   test,    to    identify   a

controlled substance), disc. review denied, 314 N.C. 335, 333

S.E.2d 496 (1985).             Thus, Raney’s tests in this case were not in

need    of    additional        “indices     of     reliability”     because,   unlike

novel scientific techniques, his methods have repeatedly been

found to be reliable.               See Howerton, 358 N.C. at 459-60, 597

S.E.2d at 687.            Since Raney used proven methods and defendant

made no objection challenging the reliability of these methods,

we find that the trial court did not need to re-establish their

reliability.

       Accordingly, we conclude the trial court did not abuse its

discretion in allowing the expert testimony,                         and   we find no

error    in    the    trial       court’s    admission       of   Raney’s    testimony

identifying the substance as heroin into evidence.                         Since there

was no error, there could not have been plain error.                          State v.

Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986).
                                        -11-

                         II. Assistance of Counsel

      Next,     defendant      argues      that   he    was   denied          his   Sixth

Amendment       right   to      the   effective        assistance        of     counsel.

Specifically, defendant argues that his attorney’s failure to

object to Raney’s expert testimony subjected defendant’s case on

appeal     to    the    plain      error    standard,       thereby       prejudicing

defendant.      We disagree.

      “When a defendant attacks his conviction on the basis that

counsel was ineffective, he must show that his counsel’s conduct

fell below an objective standard of reasonableness.”                           State v.

Fletcher, 354 N.C. 455, 481, 555 S.E.2d 534, 550 (2001).                              To

meet this burden, a defendant must satisfy the following two-

part test:

              First,   the   defendant  must   show   that
              counsel’s performance was deficient.    This
              requires showing that counsel . . . was not
              functioning as the “counsel” guaranteed the
              defendant by the Sixth Amendment.    Second,
              the defendant must show that the deficient
              performance prejudiced the defense.     This
              requires showing that counsel’s errors were
              so serious as to deprive the defendant of a
              fair   trial,  a   trial  whose  result   is
              reliable.

Id.   (citation     omitted).         Moreover,     “[c]ounsel      is    given      wide

latitude in matters of strategy, and the burden to show that

counsel’s performance fell short of the required standard is a

heavy one for defendant to bear.” Id. at 482, 555 S.E.2d at 551.

      In   addressing        the   first    prong      of   the   test,        defendant
                                          -12-


asserts      his    counsel’s      performance         was    deficient         because      he

failed to object to Raney’s identification of the substance as

heroin.       Defendant further contends his attorney’s failure to

object      could    not   have    been   a    part     of    any    reasonable          trial

strategy.       We disagree.

       In    actuality,     and    contrary      to     defendant’s           argument,      an

objection would have caused Raney to give additional testimony

as to the reliability of the methods he used, likely bolstering

the   weight       and   credibility      of   his     testimony         with    the     jury.

Defendant has failed to meet his burden of demonstrating that

his attorney’s decision not to object to Raney’s testimony was

not part of a trial strategy to leave open the ability to attack

Raney’s testing methodology in closing and on appeal.                             Moreover,

as    discussed      above,      the   trial   court’s        admission         of    Raney’s

testimony was not in error.               Thus, because defendant has failed

to    satisfy      the   first    prong   of     the    test,       we    find       that   his

argument      regarding       ineffective         assistance             of     counsel      is

overruled.

                                       CONCLUSION

       We    conclude      that    the    trial       court    did        not    abuse      its

discretion or err by admitting Raney’s testimony.                             Additionally,

defendant has failed to show that his counsel’s performance was

unconstitutionally deficient.              We therefore find no error in the

court’s judgment.
                         -13-


NO ERROR.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).
