It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details. Continue reading
Tag Archives: ward
Fall 2022 Cannabis Update
Think You Know Drug ID?
A considerable amount of digital ink has been expended on this blog discussing the rules for identifying drugs at trial and related issues, although it has been several years since we covered it. It’s an important and potentially dispositive issue in drug trials. Consider the following fact pattern:
The defendant is charged with possession of methamphetamine. During her arrest and processing, she tells the officer that she has “meth” on her person, which is seized by the officers. At trial, the officer testifies to her statement about the nature of the substance, and the alleged meth is itself introduced at trial. However, no chemical analysis is introduced, nor is there any expert testimony about the substance, and the defendant presents no evidence. At the close of the State’s evidence, the defendant moves to dismiss, arguing that the State failed to provide sufficient proof of the identity of the alleged drugs. Should the motion be allowed? Read on for the answer. Continue reading →
Now Where Are We with Drug ID?
Several earlier posts (here, here, here and here) and this article discuss the North Carolina Supreme Court’s ruling in State v. Ward, 364 N.C. 133 (2010), that the identification of a controlled substance based upon mere visual inspection is insufficiently reliable to serve as the basis for an expert’s opinion pursuant to Rule 702 of the North Carolina Rules of Evidence. Though Ward’s holding was “limited to North Carolina Rule of Evidence 702,” the court pronounced in broad terms 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, though the issue was not before the court, Ward’s dicta questioned the State’s ability to establish the identity of a controlled substance beyond a reasonable doubt without a chemical analysis. Court of appeals opinions in Ward’s wake have treated the sufficiency pronouncement as a new rule, explaining that expert testimony based on a scientifically valid chemical analysis generally is required to identify a controlled substance beyond a reasonable doubt.
Among these opinions is State v. Nabors, ___ N.C. App. ___, 700 S.E.2d 153 (2010), a case arising from a undercover drug transaction in which the defendant allegedly sold crack cocaine to an informant while being monitored by police. At the defendant’s trial, the informant testified that he “knew” the substance he bought “to be crack cocaine,” a drug with which he had significant personal experience. A police officer who was part of the take-down team also testified that the substance the informant purchased was crack cocaine. The defendant did not object to this testimony.
During his case in chief defendant called as a witness Quinton Smith, who was in the car with the defendant when the crack cocaine was sold. Smith testified that he, not the defendant, sold the drugs to the informant.
On appeal, defendant argued that the trial court committed plain error by admitting into evidence the officer’s testimony that the substance the informant bought from the defendant was “crack cocaine.” He also argued that the trial court erred in denying his motion to dismiss for insufficiency of the evidence, contending there was “no properly admitted evidence” that proved the existence of the substance defendant sold.
Relying on Ward, a unanimous panel of the court of appeals vacated the defendant’s convictions on the basis that the sole evidence that the substance was crack cocaine consisted of lay opinion testimony from the charging police officer and an informant based on their visual observation of the substance. The appellate court concluded that the absence of a scientifically valid chemical analysis of the substance sold rendered the evidence insufficient as a matter of law to establish its identity.
The state supreme court granted discretionary review and, in an opinion issued earlier this month, reversed. State v. Nabors, ___ N.C. ___, ___ S.E.2d ___ (December 9, 2011). In considering defendant’s challenge to the sufficiency of the evidence, the court noted the well-established rule that both competent and incompetent evidence that is favorable to the State must be considered by the trial court in ruling on the motion. Furthermore, the court noted that evidence proffered by the defendant may be used to explain or clarify State’s evidence when it is consistent therewith.
The court determined that Smith’s testimony that he, rather than the defendant, sold “cocaine” to the informant “provided substantial evidence that the substance . . . sold . . . was cocaine.” Slip op. at 9. Noting that defendant’s defense at trial was that Smith, not he, orchestrated the drug transaction, the high court held that “when a defense witness’s testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony in arguing that his motion to dismiss should have been allowed.” Slip op. at 10.
Nabors is tough to square with post-Ward progeny deeming a defendant’s admission that a substance was a controlled substance insufficient to establish that fact. See State v. Williams, ___ N.C. App. ___, 702 S.E.2d 233, temp. stay allowed, ___ N.C. ___, 705 S.E.2d 382 (2010) (rejecting State’s argument that officers’ and defendant’s identification of the substance as cocaine rendered the error harmless; explaining that State is required to “present evidence as to the chemical makeup of the substance”). Indeed, the high court’s opinion casts doubt on whether Ward in fact established a new rule governing evaluation of the sufficiency of the evidence in drug prosecutions. After all, if visual identification of a controlled substance by a witness for the State is insufficient as a matter of law to establish the chemical makeup of the substance, how can testimony from a witness for the defendant identifying a substance as cocaine, without further explanation of the basis for the identification, shore up the State’s evidence? If Smith had testified for the State, fingering the defendant as the purveyor of the cocaine, then his testimony identifying the substance sold as crack cocaine, even when combined with that of the officer and informant, presumably would have been deemed insufficient under the general “rule” thought to have been minted in Ward dicta. Perhaps Nabors signals the state supreme court’s retreat from the sufficiency analysis it ostensibly sanctioned in Ward.
Eating the Evidence
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.
State v. Woodard: No Chemical Analysis Required Where Pharmacist Identifies Drugs
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.
Where Are We with Drug ID?
Jeff wrote last June about the North Carolina Supreme Court’s opinion in State v. Ward, which held 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 stated 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 statement echoed dicta in an earlier opinion, State v. Llamas Hernandez, discussed here, 189 N.C. App. 640 (2008) (dissenting op.), reversed for reasons stated in dissenting opinion, 363 N.C. 8 (2009), in which the court opined that by enacting a scientific definition of cocaine, the legislature clearly expressed its intent that expert testimony based on laboratory analysis be required to establish that a substance is a controlled substance. Many, including me, wondered post-Ward whether the State’s failure to introduce a chemical analysis at a defendant’s trial on drug charges rendered the evidence insufficient to establish the defendant’s guilt beyond a reasonable doubt.
Might the sufficiency of the evidence depend on the type of drug? Compare State v. Fletcher, 92 N.C. App. 50 (1988) (expert testimony from experienced officer identifying marijuana properly admitted; absence of chemical analysis did not render State’s evidence insufficient) with State v. Llamas-Hernandez, 363 N.C. 8 (2009) (error for detectives to testify to their lay opinion that nondescript white powder was cocaine). Might it also hinge on the basis for the lay opinion testimony identifying the substance? Consider, for example, State v. Yelton, 175 N.C. App. 349 (2006), a case in which the defendant was convicted of possessing and selling methamphetamine, a drug that, like cocaine, is defined by its chemical properties. The methamphetamine was identified by a person who smoked the substance the defendant distributed. Because the prosecution in Yelton was spurred by the death of a person who smoked the substance defendant distributed, rather than a drug bust, there were no drugs available to submit for a chemical analysis. Post-Ward, is evidence from a lay witness identifying a drug ever sufficient to establish beyond a reasonable doubt that the substance was a particular drug?
Court of appeals opinions filed in Ward’s wake answer some of these questions.
In State v. Nabors, ___ N.C. App. __, 700 S.E.2d 153 (October 19, 2010), temporary stay allowed by __S.E.2d__, 2010 WL 5287421 (N.C. Nov 05, 2010), the court of appeals relied upon Ward in vacating the defendant’s convictions for drug charges on the basis that the sole evidence that the substance was cocaine consisted of lay opinion testimony from the charging police officer and an informant based on their visual observation of the alleged crack cocaine. Nabors quoted Ward for the proposition that the evidence required to establish that the substance was in fact a controlled substance “must have been expert witness testimony ‘based on a scientifically valid chemical analysis and not mere visual inspection.’” Slip. op. at 1. The substance in Nabors was analyzed by the SBI, but the analyst did not testify at trial. Nabors rejected any distinction between the propriety of visual identification of crack versus powder cocaine, stating that “[i]n light of State v. Ward, the continued viability of the State v. Freeman holding [that it was proper for experienced officer to testify as to his lay opinion that pills were crack cocaine] is in doubt.” Slip. op. at 6 n.2.
In State v. Williams, ___ N.C. App. ___, 702 S.E.2d 233 (December 7, 2010), temporary stay allowed by __ S.E.2d __, 2010 WL 5423747 (N.C. Dec 20, 2010), police officers identified the substance seized from defendant as crack cocaine. The defendant said the “cocaine” belonged to someone else. A forensic chemist who conducted a peer review of another chemist’s analysis of the substance but did no analysis herself testified at trial that the substance was cocaine. The appellate court held that admission of the reviewing analyst’s testimony violated the defendant’s confrontation clause rights and constituted reversible error. The court rejected the State’s argument that the officers’ and defendant’s identification of the substance as cocaine rendered the error harmless and explained that the State was required to “present evidence as to the chemical makeup of the substance.” Slip op. at 10.
State v. Jones, __ N.C. App. ___, 703 S.E.2d 772 (December 21, 2010), temporary stay allowed by __S.E.2d __, 2011 WL 135746 (N.C. Jan 11, 2011), likewise involved the admission of evidence that violated the defendant’s confrontation clause rights. In Jones, a report identifying the substance seized from the defendant as crack cocaine was introduced into evidence without testimony from the analyst who prepared the report. The court held that admission of the report was plain error, notwithstanding the arresting officer’s testimony identifying the substance as crack cocaine. In so holding, the court reiterated that visual identification of crack cocaine by a trained police officer “is not enough to identify beyond a reasonable doubt a substance chemically defined by our legislature.” Slip op. at 4.
State v. Dobbs, ___ N.C. App. ___, 702 S.E.2d 349 (December 7, 2010), reflects the notion, adopted in Ward, that visual identification of a quantity of drugs remains probative when it is confirmed by a chemical analysis of a sufficient sample of the drugs. In Dobbs, the defendant argued unsuccessfully that the evidence was insufficient to convict him of trafficking in hydrocodone, a Schedule III controlled substance and opium derivative, because a chemical analysis was performed on only one of eight tablets. The remaining tablets were identified by a visual inspection and comparison to information contained a pharmaceutical database. Defendant contended that this was an insufficient sample and that a chemical analysis was required for the number of tablets necessary to reach the trafficking threshold of 4 grams. The court of appeals rejected these arguments, first on the basis that defendant failed to raise them before the trial court and then on the merits, citing as support State v. Myers, 61 N.C. App. 554 (1984), holding that a chemical analysis of a portion of the pills coupled with visual inspection of the rest was sufficient to support a conviction for trafficking in 10,000 or more tablets of methaqualone.
The court continues, however, to sanction visual identification of marijuana. Earlier this month, the court held in State v. Garnett, (No. COA10-111), ___ N.C. App. ___, ___ S.E.2d ___ (February 15, 2011), that a forensic chemist’s in-court, visual identification of marijuana was proper. The visual identification and the defendant’s admission that the substance was marijuana and that he was selling it were sufficient to establish defendant’s guilt beyond a reasonable doubt. Garnett cited as support State v. Fletcher, discussed above.
What does this mean for drug identification testimony in criminal cases? Expert testimony identifying controlled substances other than marijuana must be based upon a chemical analysis, and, in cases involving controlled substances other than marijuana, a chemical analysis generally is required to establish the defendant’s guilt beyond a reasonable doubt. It remains to be seen whether the court will carve out an exception from this general requirement for a case like Yelton, in which there are no drugs to analyze and in which the identification testimony is based on perception beyond visual observation.
Thoughts about Ward
As I mentioned in a recent news roundup, earlier this month the Supreme Court of North Carolina decided State v. Ward. The basic holding of the case is that the visual identification of controlled substances is not reliable enough to be admitted in criminal trials, and that a chemical analysis of such substances is normally required in order to identify them. Earlier blog posts on this general subject are here, here, and here.
In thinking about Ward and talking about it with my colleagues and with lawyers across the state, a couple of topics have come up time and again. I thought I’d post about them.
1. Does Ward mean that the state must conduct a chemical analysis of every pill in, for example, a case involving 500 pills of ecstasy? No. In the words of the court, “A chemical analysis of each individual tablet is not necessary. The SBI maintains standard operating procedures for chemically analyzing batches of evidence, and the propriety of those procedures is not at issue here. A chemical analysis is required in this context, but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.”
2. Does Ward apply to marijuana? I don’t know. Some of the language in the opinion is very broad. For example, “the burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution. Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Slip Op. at 23 (emphasis added). And the court specifically referred to Schedule VI, the controlled substance schedule that includes marijuana and virtually nothing else, when it said that chemical definitions of drugs were present “throughout the lists of Schedule I through VI controlled substances.” Slip Op. at 15. On the other hand, (1) marijuana can be identified not just visually, but by smell also, arguably increasing the reliability of a non-chemical identification; (2) “marijuana” is listed in Schedule VI, but “marijuana” is not a chemical definition, meaning that part of the court’s rationale does not apply to marijuana; and (3) one of the reasons the court gave for requiring chemical analysis was the prevalence of counterfeit controlled substances, see Slip Op. at 18, but the Congressional hearings and FDA reports to which the court cited appear to concern counterfeit pharmaceuticals; counterfeit marijuana may be less prevalent or easier to distinguish from the real thing. All I can say for sure is that whether Ward effectively overrules State v. Fletcher, 92 N.C. App. 50 (1988) (approving visual identification of marijuana), will be hotly contested across the state in the coming months.
3. What does the court mean when it says chemical analysis is required “[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance?” Again, I don’t know. But at least two possibilities come to mind. First, the court might be leaving the door open to some alternative technology, like radiological identification of drugs, that may not properly be classified as a “chemical analysis.” (Perhaps someone with a science background could weigh in here?) Second, the court might have in mind situations where the defendant himself — or perhaps a customer who has consumed the defendant’s product — identifies the drugs in question. I assume that a stipulation to the identity of the drugs would also suffice.
If folks have other questions or comments about Ward, chime in.
There’s been lots of interesting news lately, so I’ll dive right in.
1. The state supreme court issued several opinions yesterday. By far the most significant criminal case is State v. Ward. I may do a whole post about Ward, but the basic holding is that visual identification of controlled substances is unreliable and that “[u]nless the State establishes . . . that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.”
2. The front page of the News and Observer today features a story about the General Assembly’s efforts to outlaw so-called “internet sweepstakes,” the offspring of video poker. These games have proven to be an elusive target, and it will be interesting to see what action, if any, the legislature takes.
3. The legislature also appears to be considering whether to ban “synthetic cannabinoids,” including “Spice.” As I understand it, these products are combinations of non-controlled herbal ingredients intended to mimic the effects of marijuana. HB 2073 and SB 1452 are authorizing resolutions that represent first steps in the direction of a ban.
4. Last week, I mentioned that a death row inmate in Utah requested to be executed by firing squad. The execution took place early this morning, apparently without incident as reported here.
5. Ars Technica recently profiled the FBI’s five most wanted cyber criminals. It’s an interesting group, though I find it a little hard to believe that a guy who enabled other people to get satellite TV without paying for it really cracked the top five.
6. Finally, a couple of stories on the lighter side. The News and Observer recently carried a story about a thief who robbed a convenience store of $66 . . . but dropped $65 of it on the sidewalk during his getaway. Who says crime doesn’t pay? And CNET reports that a Tennessee man unhappy with getting a ticket in what he viewed as a speed trap got the last laugh when he noticed that the local police department’s website registration was expired. He bought the domain, replacing the department’s website with information about the speed camera that snared him.