On May 19th, 2020 the North Carolina Court of Appeals issued its opinion State v. Sasek. Mr. Sasek was convicted in March of 2019 of possession with intent to sell or deliver a schedule II controlled substance and sale of methamphetamine, which led to the revocation of his probation. Defense counsel should be aware of this case as it highlights the importance of an expert providing testimony about how a methodology was applied in the case at hand, if their testimony is to be accepted as expert opinion testimony under Rule 702. The case highlights the importance of objecting at trial to any violation of Rule 702. Additionally, in cases with complex scientific evidence, counsel should consult with IDS Forensic Resource Counsel and/or an independent expert to determine whether expert assistance is needed.
Mr. Sasek was arrested after the Yancey and Mitchell County Sheriff’s office set up a controlled buy using a confidential informant. The informant approached Mr. Sasek and returned with a plastic bag full of a crystalline substance the officers believed to be methamphetamine. At trial, an expert witness from the North Carolina State Crime Lab described the methodology behind GCMS generally and the opinion states that the expert was prepared to describe how those methods were applied in the case at hand but was interrupted by the prosecutor before she could do so. Her lab report was admitted in evidence. Defense counsel did not object at trial to the admission of the expert testimony. However, counsel did move to dismiss all charges based on the insufficiency of the State’s evidence. That motion was denied and Sasek was convicted.
The appeal raised two separate challenges to the trial court’s ruling: (1) the trial court committed plain error in admitting expert testimony when the State failed to show how the expert witness applied her previously described methodology to the facts of the case to arrive at her conclusion in violation of Rule 702 of the North Carolina Rules of Evidence and; (2) Mr. Sasek’s probation revocation hearing was unjustifiably delayed and the record showed no good cause for revoking Mr. Sasek’s probation after his probation period had already expired.
In the majority opinion, written by Judge Lucy Inman, the Court of Appeals held that the trial court abused its discretion in admitting the expert testimony without a demonstration of how the expert witness applied her methods to the fact of the case. The majority found that the issue on appeal was “materially indistinguishable” from that in State v. McPhaul (256 N.C. App. 303 (2017)), in which the Court held that a fingerprint analyst’s testimony that she arrived at her conclusion based on the general procedure of the test as described, plus her own training and experience, was not sufficient to satisfy the third prong of the Rule 702 reliability test and therefore its acceptance at trial constituted an abuse of discretion. However, the Sasek Court found that the error did not rise to the level of plain error. Citing State v. Piland (822 S.E.2d 876, 888 (2018)), the Court claimed that the expert’s conclusions were not “baseless speculation” because “the expert testified that she performed a ‘chemical analysis’ and as to the results of that chemical analysis.” The Court concluded the testimony “was not so prejudicial that justice could not have been done.”
The Court sided with Mr. Sasek on the issue of the delayed probation violation hearing and vacated the judgements revoking his probation. Judge Berger wrote a concurring opinion addressing only the delayed hearing issue. The opinion and the concurrence in their entirety can be found here.