State v. Figueroa ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-313
Filed 19 December 2023
Guilford County, No. 18CRS089940
STATE OF NORTH CAROLINA
v.
ZENAIDA FRANCHESCA FIGUEROA
Appeal by Defendant from judgment entered 7 February 2022 by Judge Martin
B. McGee in Guilford County Superior Court. Heard in the Court of Appeals 18
October 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Nicholas
Sorensen, for the State-Appellee.
Joseph P. Lattimore for Defendant-Appellant.
COLLINS, Judge.
Defendant appeals from a judgment entered upon a guilty verdict of trafficking
methamphetamine. Defendant argues that the trial court plainly erred by admitting
expert testimony without first ensuring that the expert’s methods were sufficiently
reliable or reliably applied to the facts of the case, and that the trial court erred by
failing to intervene ex mero motu when the prosecutor made improper remarks
during closing argument. Upon review, we hold that the trial court did not plainly
err by admitting the expert testimony, and that the trial court did not err by failing
STATE V. FIGUEROA
Opinion of the Court
to intervene ex mero motu during closing argument.
I. Background
In November 2018, Guilford County law enforcement officers were conducting
an undercover investigation of a suspected drug dealer (“the Suspect”). An
undercover officer arranged to purchase two ounces of methamphetamine from the
Suspect on 26 November 2018 and established a meeting location a few days later.
The Suspect arrived at the meeting location in a vehicle driven by Defendant. When
the Suspect arrived at the meeting location, Detective C.E. Sheets and a takedown
team of four or five officers approached the vehicle, detained the Suspect and
Defendant, and searched the vehicle. Sheets recovered a brown paper bag from the
front passenger’s seat, which contained what Sheets described as a “clear white
crystally substance” that he suspected was methamphetamine. Sheets interviewed
Defendant and informed her that she would be charged at a later date based on the
suspected methamphetamine found in the vehicle. Sheets then sent the suspected
methamphetamine to the state crime lab for analysis.
Defendant was indicted on 18 March 2019 for trafficking methamphetamine
by possession. Defendant was also charged with trafficking methamphetamine by
transportation and conspiracy to traffic methamphetamine. At trial, the State
presented expert testimony from Brittnee Meyers, the forensic scientist who
examined the suspected methamphetamine that Sheets recovered from the vehicle.
Meyers testified that she performed a preliminary color test and a confirmatory
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Opinion of the Court
infrared spectrophotometer test on the substance, from which she identified the
substance to be methamphetamine. Meyers measured the weight of the
methamphetamine to be 56.40 grams.
Sheets also testified about his interview with Defendant. Sheets testified that
Defendant initially disclaimed any knowledge of the methamphetamine, but later
told him that she “kind of know[s] what’s going on.” According to Sheets, Defendant
stated that the Suspect had asked Defendant if she could “get ahold of two ounces of
ice,” to which Defendant responded that she could. Defendant then contacted her
sister, who put her in touch with a man who goes by the name “Dread.” Defendant
met with Dread near the meeting location arranged by the undercover officer and the
Suspect.
Defendant testified in her own defense and gave an alternate version of events.
Defendant testified that the Suspect asked Defendant for a ride to Greensboro but
did not explain why. The Suspect asked Defendant to park in a certain spot and
within two minutes the vehicle was surrounded by law enforcement. Defendant
testified that she consistently denied any knowledge of the methamphetamine while
speaking to law enforcement officers, that she did not tell officers that she worked
with her sister to procure methamphetamine, and that she did not know anyone
named Dread.
The jury found Defendant guilty of trafficking methamphetamine by
possession, and not guilty of trafficking methamphetamine by transportation and
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Opinion of the Court
conspiracy to traffic methamphetamine. Defendant filed written notice of appeal.
II. Discussion
A. Expert Testimony
Defendant argues that the trial court plainly erred by admitting Meyers’
testimony and lab report identifying the substance in Defendant’s vehicle as
methamphetamine because her testimony failed to lay a sufficient foundation for
reliability under Evidence Rule 702.
“[A]n unpreserved challenge to the performance of a trial court’s gatekeeping
function under Rule 702 in a criminal trial is subject to plain error review.” State v.
Gray, 259 N.C. App. 351, 354, 815 S.E.2d 736, 739 (2018) (citation omitted). To show
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) (citation
omitted). “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 and
citations omitted). “[B]ecause plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotation marks and
citations omitted). The standard is so high “in part at least because the defendant
could have prevented any error by making a timely objection.” State v. Walker, 316
N.C. 33, 39, 340 S.E.2d 80, 83-84 (1986) (citation omitted).
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Opinion of the Court
Rule 702(a) provides a three-part test for determining whether expert
testimony is admissible:
If scientific, technical or other specialized knowledge will
assist the trier 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 thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and
methods.
(3) The witness has applied the principles and methods
reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2022). Where the State seeks to prove the
identity of a controlled substance through expert testimony, such testimony is
admissible only when it is “based on a scientifically valid chemical analysis and not
mere visual inspection.” State v. Ward, 364 N.C. 133, 142, 694 S.E.2d 738, 744 (2010).
At trial, Meyers was tendered and qualified as an expert in forensic science
and forensic drug chemistry without objection. Upon being qualified as an expert,
Meyers gave the following testimony:
[STATE:] . . . [D]id you receive this substance at your lab?
[MEYERS:] Yes, I did.
[STATE:] And if you’ll tell the jurors if you know when you
received it and what, if anything, you did with the item.
[MEYERS:] I received the evidence on February 10, 2020,
and I conducted an analysis on the crystalline material
that was contained inside.
[STATE:] Okay. And I guess without being too technical
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Opinion of the Court
for us, could you tell us what -- what do you do to determine
what type of controlled substance -- substance that you
may have received?
[MEYERS:] In this case, I performed a preliminary color
test known as the marquis color test, and I also completed
a confirmatory infrared spectrophotometer test as well.
And in this case, I identified methamphetamine, which is
a Schedule II controlled substance.
[STATE:] Okay. And that was your opinion based on your
analysis?
[MEYERS:] Yes.
Defendant argues that Meyers’ testimony was admitted in violation of Rule
702(a) because Meyers failed to explain the procedure she employed or how that
procedure was applied to the facts of this case.
This Court rejected a similar argument in State v. Piland, 263 N.C. App. 323,
822 S.E.2d 876 (2018). In Piland, defendant was charged with several drug-related
offenses after law enforcement officers recovered a bottle containing a large quantity
of tablets from his residence. 263 N.C. App. at 326-27, 822 S.E.2d at 881. At
defendant’s trial, a forensic scientist gave expert testimony that she “performed a
chemical analysis on a single tablet to confirm that they did in fact contain
[hydrocodone],” but the expert did not identify the chemical analysis she performed
or describe how it was performed. Id. at 338-39, 822 S.E.2d at 888. This Court held
that “it was error for the trial court not to properly exercise its gatekeeping function
of requiring the expert to testify to the methodology of her chemical analysis.” Id. at
339-40, 822 S.E.2d at 888. Nonetheless, the error did not amount to plain error
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Opinion of the Court
because “the expert testified that she performed a ‘chemical analysis’ and as to the
results of that chemical analysis.” Id. at 340, 822 S.E.2d at 888. This Court reasoned
that the expert’s testimony did “not amount to ‘baseless speculation,’” and thus “was
not so prejudicial that justice could not have been done.” Id. (citation omitted).
We reach the same conclusion here. At Defendant’s trial, Meyers gave expert
testimony that she “performed a preliminary color test known as the marquis color
test” and “a confirmatory infrared spectrophotometer test” from which she identified
the evidence in this case to be methamphetamine. Although Meyers identified the
analysis that she performed, she did not explain the methodology of that analysis.
Thus, the trial court erred by failing to exercise its gatekeeping function. See id. at
339-40, 822 S.E.2d at 888. However, the error does not amount to plain error because
Meyers identified the tests she performed and the result of those tests. See id. at 340,
822 S.E.2d at 888. Accordingly, Meyers’ testimony did “not amount to ‘baseless
speculation,’” and thus “was not so prejudicial that justice could not have been done.”
Id. (citation omitted).
B. Closing Argument
Defendant argues that the trial court erred by failing to intervene ex mero
motu when the prosecutor used Defendant’s past convictions as substantive evidence
of Defendant’s guilt during closing argument.
“When a defendant appears as a witness at trial, evidence of the defendant’s
past convictions may be admissible for the purpose of attacking the defendant’s
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Opinion of the Court
credibility as a witness.” State v. McEachin, 142 N.C. App. 60, 69, 541 S.E.2d 792,
799 (2001) (citing N.C. Gen. Stat. § 8C-1, Rule 609(a)). However, “it is improper for
the State to suggest in its closing argument to the jury that [such] evidence is
substantive evidence of the defendant’s guilt.” Id. (citation omitted).
Where, as here, the defendant did not object at trial to an improper jury
argument, the defendant must show that the prosecutor’s argument was “so grossly
improper that the trial court abused its discretion by failing to intervene ex mero
motu.” State v. Campbell, 359 N.C. 644, 676, 617 S.E.2d 1, 21 (2005) (citation
omitted). “To make this showing, defendant must demonstrate that the prosecutor’s
comments so infected the trial with unfairness that they rendered the conviction
fundamentally unfair.” Id. (quotation marks and citation omitted).
Here, Defendant testified in her own defense, and her past convictions were
admitted for the purpose of attacking her credibility under Rule 609(a). Throughout
his closing argument, the prosecutor permissibly attacked Defendant’s credibility,
arguing to the jury that, “[i]f you want to believe her story, . . . you have to believe
that Officer Sheets is lying,” and asking the jury to discount Defendant’s testimony:
I would ask you to discount everything she said. She
doesn’t get to call [Sheets] -- and I’ll just say a liar or giving
a mistruthful statement from that stand and then say,
okay, believe me, believe my testimony up here. Either
you’re going to believe her or you don’t. And my position is
you don’t believe her because Detective Sheets was credible
and he’s truthful about what took place.
The prosecutor emphasized that credibility was the crux of the jury’s decision:
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Opinion of the Court
What it comes down to, ladies and gentlemen, I’ll contend
to you is the believability of the witnesses. If you believe
everything . . . Sheets has said, then she’s guilty of
transporting methamphetamine and possession of
methamphetamine by trafficking. If you disbelieve what
Detective Sheets has told you with regards to her
statements, then you could find her not guilty.
But, in essence, that’s what it really boils down to. I can
sit here and argue all the elements of the case[,] . . . but if
you believe his testimony, she’s guilty. If you don’t believe
his testimony, then she’s not guilty.
The prosecutor also referenced Defendant’s past convictions without objection:
And so that -- that begs the question, who is this young
lady? I will contend to you she’s -- she’s someone who’s
involved in drug deals. You heard about her prior record.
Although it is larceny and obtaining property by false
pretense, that gives you some preview as to who she is.
While the vast majority of the prosecutor’s closing argument permissibly
attacked Defendant’s credibility, the contested statement improperly suggested that
Defendant was more likely to be guilty of the charged offenses based on her past
convictions. However, the improper statement comprised only a few lines of the
prosecutor’s eighteen-page closing argument, as transcribed, and was not so grossly
improper that it warranted judicial intervention. C.f. State v. Tucker, 317 N.C. 532,
543-45, 346 S.E.2d 417, 423-24 (1986) (ordering a new trial when prosecutor
repeatedly used defendant’s past convictions as substantive evidence of defendant’s
guilt over objection); McEachin, 142 N.C. App. at 70, 541 S.E.2d at 799-800 (assuming
without deciding that prosecutor’s argument that defendant had ‘killed before and
. . . he’s killed again’ was grossly improper). Thus, the prosecutor’s reference to
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Opinion of the Court
Defendant’s past convictions did not “so infect[] the trial with unfairness that [it]
rendered the conviction fundamentally unfair.” Campbell, 359 N.C. at 676, 617
S.E.2d at 21 (citation omitted). Accordingly, the trial court did not abuse its
discretion by failing to intervene ex mero motu.
III. Conclusion
For the foregoing reasons, the trial court did not plainly err by allowing the
expert to testify that the substance was methamphetamine, and the trial court did
not abuse its discretion by failing to intervene ex mero motu during closing argument.
NO PLAIN ERROR AND NO ERROR.
Judges GORE and FLOOD concur.
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