The North Carolina Supreme Court held in State v. Ward, 364 N.C. 133 (2010) (discussed here), that the trial court abused its discretion by permitting an expert chemist to identify pills as controlled substances based solely on a visual inspection and comparison with medical literature, as this methodology was not sufficiently reliable pursuant to Rule 702 of the North Carolina Rules of Evidence. Ward further stated that “[u]nless the State establishes before trial that another method of identification is sufficient to establish the identity of the alleged controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Id. at 147. Thus, Ward’s impact on drug prosecutions was two-fold. First, Ward raised questions about whether expert testimony identifying controlled substances could be based on any methodology other than a scientifically valid chemical analysis. Second, Ward called into question the State’s ability to establish the identity of a controlled substance beyond a reasonable doubt without a chemical analysis.
In several drug cases decided after Ward, (discussed here), the court of appeals has held evidence insufficient to establish the drug’s identity beyond a reasonable doubt where there was no evidence regarding the chemical makeup of a controlled substance. The court has applied a different rule for marijuana, continuing to sanction and find sufficient the visual identification of this drug, which is not defined by its chemical properties. See State v. Garnett, __ N.C. App. __ (February 15, 2011).
A recent court of appeals opinion, State v. Woodard, ___ N.C. App. __ (April 5, 2011), implicates both aspects of Ward by identifying a drug identification methodology other than a chemical analysis that (apparently) satisfies Rule 702 as well as clearing the higher bar required to identify a controlled substance beyond a reasonable doubt.
The defendant in Woodard was convicted of trafficking more than 28 grams of opium and other felony charges arising from the theft of thousands of hydrocodone pills from the Crossnore Drug Store in Crossnore, North Carolina. Hydrocodone, an opium derivative, is a controlled substance defined in Chapter 90 by its chemical composition. At trial, William Martin, the pharmacist manager from the drug store, testified based on his thirty-five years of experience and his practice of keeping a perpetual pharmacy inventory that 2,691 tablets of hydrocodone acetaminophen were stolen from the pharmacy on March 22, 2009, the night of the break-in allegedly committed by defendant and two accomplices. Martin estimated the weight of stolen pills at 1,472 grams. No chemical analysis of the pills was performed.
On appeal, the defendant argued that the trial court erred in denying his motion to dismiss the charges of trafficking in opium because the evidence was insufficient to establish the identity and weight of the drugs. The court rejected defendant’s argument, holding that Martin’s identification of the stolen pills as more than 28 grams of opium derivative hydrocodone acetaminophen was sufficient to establish the identity and weight of the stolen drugs and was not analogous to the visual identification found insufficient in Ward. Because the State offered evidence that was sufficient to establish the identity of the controlled substance beyond a reasonable doubt, the court held that it was not required to perform a chemical analysis to establish the defendant’s guilt of trafficking opium.
The issue of whether Martin’s testimony met the requirements of Rule 702 was not argued on appeal. Nevertheless, if Martin’s testimony, which the court explicitly recognized was founded on his training and experience, was sufficient to establish the identity and weight of the substance beyond a reasonable doubt, such testimony surely satisfies the lower bar for the admission of expert testimony under Rule 702.
Woodard thus establishes that expert testimony identifying drugs may be based on methodology other than a chemical analysis, and that the absence of a chemical analysis does not necessarily render the evidence insufficient to identify a controlled substance.
A variation of Woodard might arise in a doctor-shopping case, where the evidence shows that a defendant obtained multiple prescriptions for a drug, which the defendant had filled at a pharmacy. Testimony from the pharmacist that the drugs were provided pursuant to the prescription would appear to be sufficient to establish the identity of the controlled substances. If you know of other potential applications for Woodard or other methodologies that might stand in for a chemical analysis, please send in a comment.
The original Ward decision from the COA, affirmed by the Supreme Court, granted a new trial where evidence of visual identification of pills was improperly admitted. The State was therefore given an opportunity, if it chose, to retry the defendant with proper evidence of the chemical analysis of the pills. This most recent decision of the COA seems to indicate that the evidence may be insufficient if improper evidence identifying drugs is admitted. I don’t believe that is what Ward says as this seems to confuse inadmissibility of evidence with sufficiency of evidence.
The supreme court’s analysis in State v. Ward of Rule 702 is difficult to square with application of the rule in other contexts. The determination of reliability generally entails only “a preliminary, foundational inquiry into the basic methodological adequacy of an expert’s method of proof” and does not require conclusive proof of reliability or indisputable validity. Howerton v. Arai Helmet, 358 N.C. 440, 460 (2004). In contrast, I find it easier to align with traditional understanding of burdens of proof Ward’s statement (in dicta) that “[u]nless the State establishes before trial that another method of identification is sufficient to establish the identity of the alleged controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.”
this is kind of off topic, but is a chemical by the name of Methylone (3,4-methylenedioxy-N-methylcathinone) illegal in NC? because i heard NC is changing their chapter 90 soon.