Back in February, I blogged about State v. Bridges, ___ N.C. App. ___, 810 S.E.2d 365 (Feb. 6, 2018), and drug identification. In short, Bridges held that the defendant’s out-of-court admission to an officer that a substance was “meth” was sufficient to meet the State’s burden of proving the identity of the substance, at least where the defendant failed to object to the testimony. This decision arguably signified an expansion of the Nabors exception to the Ward rule that a chemical analysis is generally required to establish drug identity (subject to other exceptions covered in the post). For a more thorough review of the topic, see that previous post. The Court of Appeals recently decided another drug ID case, State v. Osborne, ___ N.C. App. ___ (October 2, 2018), adding a new wrinkle to the rules.
Facts. Responding to a call about a potential overdose at a hotel, officers found the defendant unconscious and “turning blue” in the bathroom of her room. The defendant’s two young children were present in the hotel room. Along with needles and bent, burnt spoons (commonly used to prepare heroin for intravenous use), officers discovered “a rock-like substance” in the room they suspected was heroin. A field-test indicated it was. First responders were able to revive the defendant with the overdose-reversing medicine naloxone, and the defendant admitted to having used heroin before losing consciousness. The defendant was charged with possession of heroin and two counts of misdemeanor child abuse. At trial, the State relied on the defendant’s statement that she used heroin, the field test, and the officers’ description of the substance. The State also performed another, different field test of the substance in front of the jury (which again indicated the presence of heroin), but otherwise presented no evidence of a chemical analysis or other expert testimony. The defendant presented no evidence and moved to dismiss at the close of the State’s evidence. The trial court denied the motion and the jury convicted on all counts. The defendant appealed, arguing that the State failed to present sufficiently reliable evidence of the substance as heroin. The court of appeals agreed, vacating the heroin conviction.
But, I thought Bridges said the defendant’s admission was enough? Well, yes and no. Bridges said that evidence of the defendant’s admission that a substance was a controlled substance can satisfy the identity element of drug possession—that the substance was in fact a controlled substance—at least in some circumstances. There, the defendant acknowledged to the arresting officer that the substance found on her person was “meth.” At trial, the State relied on her admission, which was offered by the officer without objection to establish that it was, in fact, methamphetamine (the State also introduced the substance itself, “a crystal-like substance”, into evidence at trial). Affirming the trial court’s denial of the motion to dismiss, the court of appeals stated: “[A] defendant’s out-of-court- admission offered through the testimony of a State’s witness (at least where no objection is lodged) is sufficient to meet the State’s burden” to identify the substance. Bridges, 810 S.E.2d at 368.
In Osborne, though, the defendant never explicitly admitted the substance found in her room and on the spoons was heroin. Rather, she admitted to having used heroin before officers found her. The court noted:
Although the State’s evidence strongly suggests the seized substance was heroin, that evidence was not enough to establish the identity of the controlled substance beyond a reasonable doubt and thus the State was required to present some form of scientifically valid chemical analysis to survive a motion to dismiss. Osborne Slip Op. at 2.
The evidence here, that the defendant told the officers she had taken heroin, apparently surrounded by paraphernalia and a heroin-like substance that field-tested positive as heroin, was not enough to survive the motion to dismiss. The court reasoned that many drugs appear as “white or gray rock-like substances.” Id. at 7. Nothing about the paraphernalia here was unique to heroin use—many other drugs can be cooked in a spoon and injected. But the court expressed concern about expanding Bridges and distinguished that decision:
Simply put, if we held that the State’s evidence in this case was sufficient to show the seized substance was heroin ‘beyond a reasonable doubt’, it would likely eliminate the need for scientifically valid chemical analysis in many—perhaps most—drug cases. This, in turn, would render our Supreme Court’s holding in Ward largely irrelevant. Id. at 8.
Object! So, what’s a defense attorney to do? Osborne requires defenders to look carefully at the substance (pardon the pun) of any alleged admissions by the defendant in a possession case. Did the defendant actually identify the substance to the officer? Or did the defendant merely acknowledge having used the substance? Under Osborne, that distinction matters.
Further, even if the defendant actually identified the substance, defenders should object to the use of a defendant’s out-of-court-admission to law enforcement officers that a substance was a controlled substance when used to establish drug identity (at least where no chemical analysis corroborates the admission). As I discussed in the Bridges post, part of the issue in Bridges was that defense counsel did not object to the drug ID testimony, and that is arguably essential to the holding of the case.
What about those field tests? Jeff blogged about field tests, or rather the absence of field tests in determining probable cause to arrest, here. Out in the field, these tests may help establish probable cause to arrest for drug violations. But should testimony concerning a field test come into evidence? Even where there is no more formal chemical analysis? What about the propriety of conducting a field test in front of the jury? Probably no to both questions, under State v. Carter, 237 N.C. App. 274 (2014) (abuse of discretion to admit field-test results without demonstrating reliability of test kits). See also State v. Meadows, 201 N.C. App 707 (2010) (reversible error to admit NarTest results without showing of reliability of machine). But here too an objection can make all the difference. In State v. Pinnex, 246 N.C. App. 190 (2016) (unpublished), the court found error in the admission of field tests without expert testimony about the reliability of the tests. In part because no objection was lodged, the court held the error did not rise to the level of plain error in that case. [All of those cases were decided before the amendment of Rule 702 and North Carolina’s adoption of the stricter Daubert standard for expert testimony, so the bar now is arguably even higher.] The Osborne court didn’t reach this question since it ruled for the defendant on the sufficiency of the evidence, but it’s probable that the admission of testimony about the field test and the demonstration of it before the jury would be an abuse of discretion . . . if the defense objects!
Update: On August 16, 2019, the North Carolina Supreme Court reversed the Court of Appeals decision reported here.