Eating the evidence might yield a stomach ache but it won’t ensure an acquittal. That is the lesson learned from State v. James, a case recently decided by the N.C. Court of Appeals. In James, an officer was patrolling in an unmarked vehicle when the defendant waived her over. As the officer opened her car door, displaying her uniform and badge, the defendant started running, dropping something along the way but ultimately abandoning his flight. After the defendant was secured, officers located the object that the defendant had dropped. One of the officers performed a Narcotics Field Test Kit (NIK test) on the item, which indicated that it was cocaine. The defendant was arrested on drug charges and taken to the police station for processing. While there, the defendant managed to access the seized substance and swallow it. When he was taken to the hospital for treatment, the treating doctor asked the defendant what he had taken or eaten. The defendant responded “that he ate approximately a gram of crack cocaine.” At the hospital, the defendant also asked an officer how he could be charged “since he had ate the crack.” After being treated, the defendant was brought to a magistrate. The defendant asked the magistrate, “How are they charging me with the crack, when I ate it? Or possessing the crack when I ate it?”
At the defendant’s trial, one of the officers testified that based on his training and experience, the substance appeared to be crack cocaine. Another testified that the NIK test indicated that the substance was cocaine. The defendant was convicted and he appealed, arguing that the trial court erred by allowing the officer to testify that the substance was crack cocaine based solely on a visual inspection and by allowing testimony regarding the results of the NIK test.
As to the visual identification, the court of appeals concluded that as a general rule, under State v. Ward, 364 N.C. 133, 142 (2010), visual identification of cocaine is inadmissible. It also concluded that that testimony regarding the NIK test results was inadmissible because the State did not sufficiently establish the reliability of the test. However, it determined that “[u]nder the unique circumstances of this case,” the defendant “forfeited his right to challenge the admission of this otherwise inadmissible testimony.” The court reasoned that North Carolina cases already have “recognized that even constitutional protections are subject to forfeiture as a result of improper conduct by a defendant.” In this regard it noted, among other things, the forfeiture by wrongdoing exception to the confrontation clause. It concluded:
Just as a defendant can lose the benefit of a constitutional right established for his or her benefit, we hold a defendant can lose the benefit of a statutory or common law legal principle established for his or her benefit in the event that he or she engages in conduct of a sufficiently egregious nature to justify a forfeiture determination. In this case, having prevented the State from conducting additional chemical analysis by eating the crack cocaine, Defendant has little grounds to complain about the trial court’s decision to admit the police officers’ testimony identifying the substance as crack cocaine based on visual inspection and the NIK test results.
Significant to the court’s opinion was evidence that in the normal course, all seized substances suspected to be narcotics are submitted to the SBI for further testing. Also significant were the defendant’s statements making it clear that he “swallowed the crack cocaine for the express purpose of preventing the State from charging him with possession of cocaine.”
James is interesting for a few reasons. First, it creates a new forfeiture exception to the evidence rules. Whether that exception gets extended to wrongdoing beyond the facts present in James will be fleshed out in later cases. Second, the James exception appears broader than the forfeiture exception that applies in the confrontation context, an exception cited by the court in support of its decision. Under the equitable forfeiture by wrongdoing exception that applies to hearsay statements in the constitutional confrontation context, a forfeiture only gets the prosecution through the “confrontation hoop.” For the evidence to be admitted the prosecution also must leap the “evidence hoop”—meaning that the evidence still must be admissible under the evidence rules (which at a minimum means that a hearsay exception applies). In James, however, the court creates a broader forfeiture rule with perhaps no “stopgap” as to otherwise inadmissible evidence. Another interesting point is that the court addressed the forfeiture issue at all. The fact that it did so suggests that it believed that the conviction could not be sustained—perhaps under Ward or perhaps under the corpus delecti rule (the State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence that supports the facts underlying the confession)—even with the defendant’s repeated admissions that he had possessed cocaine. If the court had thought that those admissions were sufficient to sustain the conviction, it could have concluded that even if admission of the visual identification and testimony about the NIK test was error, no prejudice occurred. It is not uncommon for the court to avoid ruling on a substantive evidence issue by assuming arguendo that an error occurred but concluding that no prejudice resulted. In fact, it did just that in State v. Trogden, decided the same day as James. But the court didn’t take that approach, suggesting that it believed the defendant’s admissions wouldn’t have been enough to sustain the conviction. Whether that was because of the corpus delecti rule or because of Ward isn’t clear. In any event, I predict that James is going to generate some interesting case law. We’ll keep you updated when that happens.