I See Cocaine

Can a lay witness testify that she could tell just by looking at a substance that it was, in fact, a controlled substance? (Let’s assume the witness has extensive dealings with drugs and therefore a basis of personal knowledge, and leave aside the credibility issues that may arise if she has been an enthusiastic consumer of said drugs.) The answer may depend not only on what drug is involved, but also on what form the drug takes. In the context of a cocaine case, powder and crack may not be treated equally.

This issue was addressed recently in State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640, 659 S.E.2d 79 (2008). The facts, in brief, were that police detectives found 55 grams of a white, powdery substance in a closet in the defendant’s home. The substance was submitted to the lab for chemical analysis, but the lab report was excluded as a discovery sanction. At trial, over the defendant’s objection, the judge allowed two detectives to give lay witness opinion testimony that the white powder was cocaine. The detectives’ opinions were based on looking at the powder; they did not do any preliminary tests on it and they offered no testimony regarding its taste, texture, or any distinguishing characteristics.

A majority of the Court of Appeals found no abuse of discretion, but made it clear that they were not comfortable with their own holding. “It seems to us that to allow a lay witness, even a police officer with extensive training and experience, to render an opinion that white powder is cocaine based solely upon the witness’s visual examination, is little more than speculation, and is not based on perception, for the visual characteristics of cocaine in powder form are not unique to that substance alone.” 659 S.E.2d at 83, citing, Michael D. Blanchard & Gabriel J. Chin, Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting Visual Identification of Indescript White Powder in Narcotics Prosecutions, 47 Am. U.L.Rev. 557 (1998).

In spite of their concerns, the majority believed they were bound by the opinion of a prior panel in State v. Freeman, 185 N.C. App. 408, 648 S.E.2d 876 (2007), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663 (2008), reconsideration denied, 362 N.C. 178, 657 S.E.2d 666 (2008). In Freeman, a police officer found a pill bottle the defendant had dropped containing a variety of white pills. The officer testified as a lay witness that he could tell two of the pills were crack cocaine by looking at them by virtue of his training and experience in the narcotics field. The Court of Appeals found no merit in the defendant’s argument that the officer should not have been allowed to offer such an opinion.

Before focusing on the dissenting opinion in Llamas-Hernandez, which is now the law in these parts, I will note three differences that jump out between Freeman and Llamas-Hernandez. First, technically, the Freeman Court was reviewing for plain error because the defendant did not object to the officer’s testimony that the pills were crack. This difference is arguably not noteworthy because the Freeman Court went out of its way to say that in any event, they saw no abuse of discretion in allowing the testimony to come in. Second, in Freeman, a chemist testified as an expert that she analyzed the pills and determined they were crack cocaine. Recall that in Llamas-Hernandez, the lab report did not come in; the State’s ability to prove the powder was a controlled substance hinged on the lay witness testimony. Third, Freeman was a crack case while Llamas-Hernandez was a powder one, a distinction that carried weight with the dissenting judge.

Judge Steelman’s dissent in Llamas-Hernandez is where the buck stops, as the North Carolina Supreme Court reversed the decision of the Court of Appeals per curiam and without an opinion for reasons stated in the dissenting opinion. Steelman advances three main points in support of his position that a lay witness cannot offer testimony that a powder is cocaine based on a visual examination.

1)      The North Carolina Controlled Substances Act lays out in great technical detail the chemical makeup of controlled substances, so clearly the General Assembly intended that expert testimony be required to prove that a substance is an unlawful drug.

2)      We have a long history of submitting substances to labs for testing and statutory procedures for the admissibility of such lab reports, so clearly visual examination does not suffice.

3)      Freeman isn’t supported by precedent and in any event, it involved crack rather than powder.

The majority in Llamas-Hernandez finds no support in the law for Steelman’s distinction between powder and crack. For Steelman, however, the form of the cocaine is significant enough that the Freeman crack case is not binding authority on the Llamas-Hernandez powder case: “Crack cocaine has a distinctive color, texture, and appearance. While it might be permissible, based upon these characteristics, for another officer to render a lay opinion as to crack cocaine, it cannot be permissible to render such an opinion as to a non-descript white powder.” 659 S.E.2d at 87, Steelman, J., dissenting.

Now that Steelman’s dissent has been picked up by the Supremes, what is the current state of the law with regard to crack? Is lay opinion admissible that a substance is cocaine so long as it is in rock form? Has Freeman been left largely undisturbed but confined to its facts? One concern jumps to the forefront. As Jeff mentioned in his May 1st News Roundup, the US DOJ has taken the position that crack and powder offenses should be treated equally under federal law because punishing crack offenses more severely disproportionately affects African American people. Does drawing a distinction crack and powder when it comes to admitting lay opinion testimony result in a system where the State of North Carolina can more readily prosecute and convict black defendants than white ones? If so, is the distinction that Steelman draws a real one, making some degree of disproportionate impact is tolerable?

For my part, I have doubts about the merits of such a distinction. For one thing, returning to my summary of Steelman’s arguments, numbers 1) and 2) apply to crack cases to the same extent they do to powder ones. The chemical makeup (optical isomers, diastereoisomers, or what-have-you) of crack is no more apparent to the naked eye than that of powder; thus we have a long history of submitting rocks to the laboratory just as we do with powder. Also, I’m not sure that Steelman’s assertion that crack has a distinctive color, texture, and appearance holds up. Crack rocks have varying appearances because they are “cooked” in a variety of ways.  I have read police reports describing crack rocks as white, yellow, tan, and brown. In texture, crack may be crumbly, oily, or crystalline. There is no consistency with regard to the size of the rocks. Finally, I have run across a number of counterfeit cases under G.S. 90-95 (a)(2) involving crack. A person can feasibly pass a substance off as crack on the streets, even to an experienced police officer. See State v. Williams, 164 N.C.App. 638, 596 S.E.2d 313 (2004) (undercover officers purchased what they believed to be crack cocaine, but was in fact Goody’s headache medicine). How does all  of this support the notion that that we can place more confidence in a lay opinion that a substance is crack? I look forward to hearing your thoughts.

I intended to consider how or whether Llamas-Hernandez affects the ruling that an officer may offer expert testimony that a substance is marijuana. See State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988). However, I have already exceeded polite blog length, so I will let the question dangle for now.