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.
First, a little background. When proving a drug possession offense, the State has the burden to show beyond a reasonable doubt that the defendant (1) possessed the controlled substance, and (2) knew it was a controlled substance. To meet the first element, a chemical analysis is generally required: “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.” State v. Ward, 364 N.C. 133, 147 (2010). My sense is that the State is mostly relying on expert witnesses that can attest to a chemical analysis in drug cases. But what about when there is no chemical analysis? What other methods of drug identification are allowed under the “unless” language of Ward?
Exceptions to the Ward rule
No chemical analysis is required to identify marijuana. Pursuant to State v. Fletcher, 92 N.C. App. 50 (1988), the identification of marijuana by an expert witness based on visual identification is sufficient for that substance. In State v. Yelton, 175 N.C. App. 349 (2006), the court approved the identification of methamphetamine by a lay witness where the witness was a long-time user of the drug, had used the specific batch of drugs in question, and testified that her identification was based on her extensive personal experience with the substance. And in State v. Woodard, 210 N.C. App. 725 (2011), an experienced pharmacist who used a distinctive and “detailed pharmacy inventory tracking process” was allowed to identify the pills stolen from his pharmacy after they were recovered. All of these methods were held to be a sufficient alternative method of identifying the drugs beyond a reasonable doubt under Ward, at least under the specific facts of the cases.
The Nabors Exception
Arguably the biggest exception under Ward was established in State v. Nabors, 365 N.C. 306 (2011). The Nabors court stated: “When a defense witness’s testimony characterizes a putative controlled substance as a controlled substance, the defendant on appeal cannot escape the consequences of the testimony in arguing that his motion to dismiss should have been granted.” Nabors at 313.
In Nabors, no evidence of a chemical analysis was presented to the jury. The defendant’s trial strategy was that someone else sold the cocaine at issue, and a defense witness testified to that effect, repeatedly characterizing the substance at issue as cocaine. The court found that this defense evidence was sufficient evidence of the identity of the drugs to survive a motion to dismiss, despite the lack of evidence of the chemical composition of the substance.
In State v. Williams, 367 N.C. 64 (2013), the court followed Nabors—there, a chemical analysis was presented via a substitute analyst (that is, a chemical analyst other than the person that actually performed the analysis). The defendant objected to the substitute analyst testimony, which was the primary issue on appeal. But, during his case in chief, the defendant testified that the substance at issue was cocaine, and his trial strategy did not challenge the identity of the substance. In finding that any error in admitting the substitute analyst testimony was harmless, the court pointed to Nabors and the defendant’s testimony: “Because the defendant testified in his own defense that the seized substance was cocaine and that he had been selling it, any alleged error in admitting [the substitute analyst] testimony and the related exhibits was harmless beyond a reasonable doubt.” Williams at 69. In other words, the defendant’s own testimony was again sufficient to establish the identity of the controlled substance.
State v. Bridges
All of that brings us to the recent case of State v. Bridges, ___ N.C. App. ___ (Feb. 6, 2018), the case on which the above fact pattern is based. To re-cap the facts, the State presented an officer’s testimony that the defendant told the officer that she possessed some “meth.” The baggie of “crystal-like substance” seized from the defendant by officers was introduced into evidence, but no chemical analysis or expert opinion about the chemical composition of the substance or its identity was presented to the jury. The defendant presented no evidence and moved to dismiss, arguing there was insufficient evidence of the identity of the drug. The trial court denied the motion and the defendant was convicted.
The defendant appealed, arguing that Ward required a chemical analysis and that Nabors did not apply—the defense presented no evidence, and there was no defense characterization of the substance as contraband, unlike in Nabors or Williams. This situation, the argument went, is distinguishable from those cases, and the general rule from Ward requiring a chemical analysis should have applied. Interestingly, the State agreed and joined the defendant’s request that the methamphetamine conviction be vacated. According to the briefs of the parties, while the defendant’s statement about the identity of the substance can be sufficient proof of the second element of possession (that the defendant believed she possessed an illegal substance, thus satisfying the requirement of knowledge for a drug possession offense), such a statement is not sufficient to prove the first element (that the substance is indeed a controlled substance), at least where the defendant is not the one who puts on evidence that the substance is a controlled substance. The Court of Appeals saw things differently.
The court pointed to State v. Ortiz-Zape, 367 N.C. 1 (2013), another case focusing primarily on substitute analyst testimony. There, a chemical analysis was again admitted by way of a substitute analyst. Additionally, an officer testified to a statement by the defendant that the substance was cocaine during direct-examination by the State, and further opined that the substance looked like cocaine (on direct, and again on cross). The Ortiz-Zape court held that any error in the admission of the substitute analyst testimony was harmless in light of evidence of the defendant’s admission and the officer’s characterization of the substance as cocaine in response to defense questioning. According the court in Bridges, the Ortiz-Zape opinion indicated:
(1) [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, (2) an officer’s own opinion concerning the substance’s identity elicited by the defendant on cross-examination is sufficient to meet the State’s burden, and (3) both statements, taken together, render any error in admitting the expert testimony harmless. Bridges, Slip Op. at 7 (emphasis omitted).
The court in Bridges concluded that it was bound under Ortiz-Zape to hold that the evidence of the defendant’s statement about the nature of the controlled substance was sufficient evidence in the light most favorable to the State to get the case before the jury (at least where no objection to the statement was made). To loop back to the original question of the post, the motion to dismiss here was properly denied.
While Nabors limited the Ward exception to evidence of the identity of the controlled substance that arises from the defendant’s own testimony or witnesses, Bridges indicates that the exception may be broader. According to the opinion, evidence of the identity of the controlled substance is sufficient to reach the jury not only if it arises from defense witnesses but also from evidence of the identity of the drug by way of a defendant’s out-of-court statements.
On the other hand, Bridges may not be quite as broad as it first seems. The court noted that there was no objection by the defense to the defendant’s statement to the officer being entered into evidence. There was likewise no objection to similar testimony in Ortiz-Zape. The Bridges court specifically left open the possibility that the evidence of the identity of the controlled substance offered by way of the defendant’s statement could be incompetent to prove the drug’s identity if an objection had been made:
Neither the majority nor the dissent [in Ortiz-Zape] state whether the defendant’s out-of-court statement to the arresting officer was competent to prove the identity of the substance. However, like in the present case, the officer’s testimony concerning the defendant’s out-of-court statement came in without any objection. And in determining the sufficiency of the State’s evidence to get to the jury on an issue, our Supreme Court has instructed that a trial court “must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State. Bridges, Slip. Op. at 6, n.1 (internal citations omitted) (emphasis in original).
The court didn’t offer any more explanation of what kind of objection would be made here or what the impact of an objection might make on the analysis. The implication, though, is that an objection to the use of the defendant’s admission in this way may be prevent its use, at least as the sole evidence of drug identity.
So what would the objection be? I’m not entirely sure, but I have some ideas. An objection to the defendant’s statement characterizing the substance as a controlled substance might be grounded in Evidence Rule 702, which establishes the requirements for the admission of expert opinion. The defendant’s statement, while admissible as a matter of hearsay as an admission of a party-opponent, might be considered improper expert opinion on the identity of the drugs. Although admissible to show the defendant believed the substance was illegal and thus show the knowledge element for possession, it may inadmissible for the purpose of establishing the identity of the drugs. If the defendant’s statement can be treated as lay opinion, not subject to the requirements of Rule 702, it may be inadmissible to prove the identity of the drugs without a foundation as to the defendant’s knowledge and experience with the drugs in question, as in Yelton, discussed earlier in this post. In any event, some kind of objection (and perhaps request for limiting instruction as to the use of the defendant’s admission) should be made by defense counsel in the event this situation arises. For the time being, the court’s footnote in Bridges suggests that the competency of a defendant’s statement to establish the identity of drugs, if objected to, is an open question.
What do readers think? Leave a comment below if you have any thoughts to share.