STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
__________ County FILE NO.
State of North Carolina
v.
________________,
Defendant
MOTION TO DISCOVER TESTING V. PROCEDURES AND DATA DERIVEDTHEREFROM DANIEL V. LALONE Defendant
NOW COMES the Defendant, Daniel V. Lalone, through counsel, and respectfully movesthis Honorable Court pursuant to State v. Cunningham, 108N.C. App (1992), State v. Fair, 164NC App 770, State v. Dunn, 154 NC App 1, and State v. Goode, 341 NC 513, for an Orderdirecting the State to provide the defendant with all testing procedures and data discovered as aresult of the testing procedures conducted upon items seized as controlled substances in theinstant case as well all underlying documents needed to determine the reliability of the opinionsrendered by the State’s experts. In support of this motion, the defendant states as follows:1. The Defendant through his attorney has previously filed a Motion for Discovery andExculpatory Material, pursuant to N.C.G.S. §15A-902. Item Number 7 of the motion fordiscovery was a request for “a report of the results of examination and tests of the expert andother information required by G.S. §15-903(a)(2).2. After making the Motion, the defendant’s lawyer was furnished with a copy of alaboratory report from the State Bureau of Investigation. Nowhere in the report were indicated 1)the testing procedures used by the examiner; 2) the results of the testing procedures used by theexaminer; 3) any data discovered as a result of testing procedures that had been conducted by theexaminer on the above-stated items that were submitted to the S.B.I. Laboratory or 4) othermaterials needed to determine the validity of the government expert’s opinions rendered in hisreport.3. In State v. Cunningham, 108 N.C. App. 185, 196 (1992) the Court noted that:“Section 15A-903(e) must be construed as entitling a criminal defendant to pretrial discovery of not only conclusory laboratory reports, but also of any tests performed or proceduresutilized by chemists to reach such conclusions.”and:“In sum, the sole document provided to defendant before trial by the State was the SBI‘laboratory report.’ This report, which basically is limited to a statement that the material analyzed contained cocaine, reveals only the ultimate result of the numerous tests performed by Agent Higgins. As such, it does not enable defendant's counsel to determine what tests were performed and whether the testing was appropriate, or to become familiar with the test procedures. We conclude that the information sought by defendant is discoverable pursuant toSection 15A-903(e) and the North Carolina Constitution...”A mere conclusion of the examiner in this matter also will not be enough for thedefendant’s lawyer to adequately prepare for cross-examination of the testing officer of the StateBureau of Investigation or to decide whether to ask for a court-appointed expert for the defendantto review the testing procedures utilized and/or to retest the materials analyzed by the StateBureau of Investigation Crime Laboratory.4) Furthermore, State v. Dunn, 154 N.C. App 1, concluded that the trial court erred byrefusing to require the State to provide the defendant information pertaining to laboratoryprotocols, incidences of false positive results, quality control and quality assurance, andproficiency tests of the State Bureau of Investigation laboratory.5) In State v. Fair, 164 NC App 770 the Court stated that under N.C. Gen. Stat. §15A-903as construed in Cunningham and Dunn, a defendant is entitled to more than just the conclusoryreports of the SBI laboratory but is entitled to the following:“1. Results or reports of physical or mental examinations or of tests, measurements orexperiments. 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 State] did not, however, provide him with the discovery he requested of informationregarding the procedures used in the tests; the data derived from the tests or othermaterials pertinent to whether the techniques used have been tested; subjected to peerreview 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 oferror and general acceptance in the scientific community...”The court found that the defendant was entitled to discover the results of the tests andthe manner in which the tests were performed. This information was deemed necessaryfor the defendant to understand the testing procedure and to conduct an effective cross-examination of the State's expert witness.6) And finally in State v. Goode, 341 N.C. 513, the Court found that:“Thus, under our Rules of Evidence, when a trial court is faced with a proffer of expert testimony, it must determine whether the expert is proposing to testify to scientific,technical, or other specialized knowledge that will assist the trier of fact to determine afact in issue. As recognized by the United States Supreme Court in its most recentopinion addressing the admissibility of expert scientific testimony, this requires apreliminary assessment of whether the reasoning or methodology underlying thetestimony is sufficiently valid and whether that reasoning or methodology can be properlyapplied to the facts in issue.”In order to satisfy the requirements established by State v. Cunningham, State v.Fair, State v. Dunn and State v. Goode, the defendant through counsel requests thefollowing items be provided through discovery:a. Evidence collection forms or logs (description of evidence, packaging,identification of specimens, identification of individuals collecting samples, samplecollection procedures).b. Chain-of-custody records (field-to-lab transfers, and all transfers of evidenceand associated analytical samples within the laboratory).c. Laboratory receiving records (records documenting the date, time and conditionof receipt of the evidence in question ; laboratory-assigned identifiers; storage location).d. Laboratory procedures for subsampling (collection of analytical aliquots) andcontamination control.e. Copies of technical procedures in effect at the time the subject testing wasperformed (often termed Standard Operating Procedures, or SOP’s) for each procedureused during sample screening and confirmation, including; sample preparation, sampleanalysis, data reporting, and instrument operation.f. Copies of the two bracketing controlled substance proficiency results for eachanalyst and technician responsible for preparation or analysis of subject specimens,including: raw data and reported results, target values and acceptance ranges,performance scores, and all related correspondence.g. Copies of traceability documentation for standards and reference materials usedduring analysis, including unique identifications, origins, dates of preparation and use,composition and concentration of prepared materials, certifications or traceability recordsfrom suppliers, assigned shelf lives and storage conditions.
WHEREFORE, for these and any other reasons appearing to the Court, thedefendant respectfully requests the granting of this motion and the provision of the itemslisted above.This November 7, 2006.Respectfully submitted,____________________________Frederic W. WhitehurstAttorney for the Defendant126 W. Washington St, PO Box 820`Bethel, North Carolina 27812252 825 1123Certificate of ServiceI hereby certify that a copy of the foregoing motion has been personally servedupon the Office of the District Attorney, 3rdJudicial District, Greenville, North Carolina,this 7thday of November, 2006._____________________________________Frederic W. Whitehursth.Sample preparation records, including dates and conditions of preparation,responsible analyst, procedural reference, purity, concentration and origins of solvents,reagents, and control materials prepared and used, samples processed concurrently,extract volume.i. Copies of bench notes, log books, and any other records pertaining to casesamples or instruments; records documenting observations, notations, or measurementsregarding case testing.j. Instrument run log with identification of all standards, reference materials,sample blanks, rinses, and controls analyzed during the day/shift with subject samples (asappropriate: run sequence, origins, times of analysis and aborted run sequences).k. Record of instrument operating conditions and criteria for variables.l. Record of instrument maintenance status and activities for instruments used insubject testing, documenting routine and as-needed maintenance activities in the weekssurrounding subject testing.m. Raw data for the complete measurement sequence (opening and closingquality control included) that includes the subject samples.n. A description of the library used for spectral matches for the purpose ofqualitative identification of controlled substances, including source(s) and number ofreference spectra.o. Copy of records documenting computation of the laboratory’s theoreticalproduction yield, including the basis for the computation, and the algorithm used, asappropriate.p. Procedure(s) for operation and calibration checks of analytical balances used toweigh controlled substances.q. Results of calibration checks and documentation of mass traceability forgravimetric determinations.r. Results of contamination control surveys for trace level analytes relevant to testmethods at the time of analysis, including sampling design and analytical procedures.
s. Records and results of internal reviews of subject data.t. Method validation records documenting the laboratory’s performancecharacteristics for qualitative identification and quantitative determinations of thecontrolled substance, to include data documenting specificity, accuracy, precision,linearity, and method detection limits.u. Copy of the laboratory’s Quality Manual in effect at the time the subjectsamples were tested as well as the laboratory’s most recent Quality Manual (howevernamed; the document that describes the laboratory’s quality objects and policies).v. Copy of the laboratory’s ASCLD-LAB application for accreditation, and mostrecent Annual Accreditation Review Report, as appropriate.w. Statement of qualifications of each analyst and/or technician responsible forprocessing case samples to include all names, locations and jurisdictions of cases inwhich these personnel testified concerning the same substances found in the present case.x. Copy of the laboratory’s ASCLD-LAB on-site inspection report, asappropriate, as well as any reports of on-site inspections by any other testing laboratoryaudit organization.y. Copy of internal audit reports generated during the period subject samples weretested.z. List of capital instrumentation in the laboratory at the time subject testing wasperformed, including manufacturer, model number, and major accessories.aa. Production throughput data for the drug testing section: numbers of testsperformed per month or per year, and the number of Full Time Equivalent personnel inthe drug testing section of the laboratory.Failure to provide this information will deny defendant his rights to due process, afair trial, confrontation, and the right to compulsory processes guaranteed by the Fifth,Sixth and Fourteenth Amendments of the United States Constitution and his rights asguaranteed by the North Carolina Constitution, Article I, Sections 19 and 23 and otherpertinent sections.