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Think You Know Drug ID?

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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.

Background

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 Appeal

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 Opinion

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.

Takeaway

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.

12 comments on “Think You Know Drug ID?

  1. GS 90-95(a) provides as follows:

    (a) Except as authorized by this Article, it is unlawful for any person:
    (1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;
    (2) To create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance;
    (3) To possess a controlled substance.

    Correct me if I’m wrong, but simple possession of a counterfeit controlled substance is not a crime. Creating a counterfeit controlled substance is a crime, sale or delivery of a counterfeit controlled substance is a crime, and PWIS/D a counterfeit controlled substance is a crime, but mere possession of a counterfeit controlled substance is not.

    Logically, if someone has purchased a counterfeit controlled substance represented by the seller to be (for example) LSD, then that purchaser BELIEVES they are in possession of LSD. Element 2 is satisfied. If that purchaser is caught by law enforcement prior to discovering the ruse, then when asked what the substance is, they are likely to say it’s LSD because that’s what they believe it to be.

    But their statement that it is LSD doesn’t make it so. Regardless of their statement, they are NOT in possession of LSD — the first element cannot FACTUALLY be satisfied — they are factually INNOCENT of the crime of possession of LSD.

    In essence, after Bridges, the State no longer has to prove the first element of the offense. The State no longer has to prove BARD that the substance was, in fact, LSD. They just have to prove BARD that, at some point in time, someone who may or may not know what the substance actually was, said it was LSD. After Bridges, why should the State expend resources on chemists and a State lab in cases where the Defendant make a statement about what they possessed? In fact, after Bridges, it may benefit the State, in certain circumstances, to NOT conduct any chemical testing of an alleged controlled substance. If they test it, they might find out it’s counterfeit, and then they couldn’t convict the defendant of anything if all he did was possess it. How is this beneficial to the administration of Justice?

    With all due respect to the Court of Appeals, I think they’re dead wrong on this, and I think under certain circumstances, the Bridges opinion sanctions the conviction of some defendants who are factually innocent.

    The State should not be allowed to take short-cuts to avoid their burden of proof simply out of convenience, or expediency, or lack of funding, or to cover errors made by the lab or law enforcement. If possession of a particular chemical compound is illegal, then the State should have to PROVE the chemical compound possessed by the defendant is what they say it is.

    What’s next? Allowing the State to skip weighing a controlled substance in a trafficking case because the defendant said he’d bought an ounce?

    OK. I’ll shut up now.

  2. I agree with Eric Eller.

  3. Eric, I have to respectfully disagree with you. There is such thing as intent. If a person intends to purchase an illegal drug, buys the substance and is caught before they have the chance to try it, they are in possession of what they believed they purchased. If they got ripped off, it does not change their intent. You cannot have it both ways. If a person goes out with the intent to purchase meth, gives a meth dealer money and receives what they believe to be meth, they are in possession of meth. Why should a person get a pass when their entire intent was to possess meth. Society has to hold people accountable for what they intended to do. The end result should not play a huge factor in the end, but their intent should be heavily considered. If you are shooting at me, and you are a bad shot, should not change the fact that your intent was to kill me. It’s really that simple. Cheers…..

    • Jon,

      “If you are shooting at me, and you are a bad shot, should not change the fact that your intent was to kill me.”

      True. And in that scenario I should be charged with Assault With a Deadly Weapon With Intent to Kill. Not Murder or Manslaughter. I may have intended to kill you, but if I fail to do so, the case is not treated the same as if I succeeded.

      The same principal can apply in other situations. Let’s say I go to someone’s house with the intent to break-in and steal from them. When I arrive, I find them at home, and they invite me in (not as unlikely as it sounds — if I’ve been in the house as a guest because I’m a friend or relative, then I know what’s worth stealing and where it can be found). So they invite me in, and I use the opportunity to steal something of minimal valuable. When I get caught, should I be charged with Felony B&E because I had planned on breaking in, but didn’t have to? Should I be charged with Felony Larceny After B&E because that’s what I intended to do?

      Whether or not something is meth is an issue of fact and the State has to prove that fact BARD. If a skilled huckster sells some dolt a carrot because they convinced him meth is orange, that doesn’t magically transform the carrot into a controlled substance – it’s still just a carrot.

      • Well, you totally missed my point. But, as I take it you are an attorney, that is your job, and I respect you for that. However, if you were to go to that house to break in, and you were invited in, then you did not believe you broke in. A person that intends to do something, meaning they want to do it, is different that a person that believes the actually did it. In the meth case, this person purchased or received what they believed was meth and told the officers it was in fact meth. There is no doubt that this person intended to possess meth and believed they did in fact possess meth, knowing it was illegal to possess. To try to get over on the law because of failure to spend money and time on an analysis of a substance is absurd. The Judges made a good call, and this defendant will be held accountable for their actions. I understand if you don’t agree, but I guess we can respectfully agree to disagree.

        • Jon,

          Let’s go back to your earlier example. “If you are shooting at me, and you are a bad shot, should not change the fact that your intent was to kill me.”

          Let’s say I’m not such a bad shot and I hit you in the chest. I see you go down, and I am absolutely convinced that I’ve succeeded in killing you. But I’m wrong, you survived.

          Have I committed murder? If it was premeditated and deliberative, with malice aforethought, should I face the death penalty when you’re not even dead?

          • With that example, I believe you should be charged. The fact that I survived should not matter in the eyes of the Court. This is a problem with the legal system, the intent should be the main focus of the crime, not necessarily the result. The Laws also go the other way, as if you were firing a gun, without intent to harm, and you do kill someone, you will not be charged with murder. Death should not be the main focus on a person’s actions when the intent is clear. Just because you do not meet your intended goal, or because a person receives great medical care or is just blessed to survive should not matter in the eyes of the law. I know that it does, but the law is not perfect in every case. A person’s intent should not be judged on the result. A person’s intent should be considered, and the law should be applied regardless of the outcome. How can the law be applied fairly when a wound that kills one person doesn’t kill another? Do you really believe that the end result should be the main focus, regardless of intent?

  4. Erik:

    I was not the trial lawyer in Nabors case, however I was the lawyer who filed the appeal and won at the court of appeals and i was the lawyer who argued the case at the Supreme Court. I got into a very heated debate with Judge Newby. I told them I had been a chemist and to rule for the State in this case would create absurd results. I addressed the issues you have raised above and I thought when I left I had persuaded them to my side. I was dead wrong. I was upset about the ruling so I wanted to find out why????? I did learn that the case was not top priority and according to my source some Justices gave up on this case ; in exchange for votes on more important cases on their docket . I can not verify that but I think that is the reason for this really really BAD LAW. So my client has an Orange he sells as the new cocaine, he calls it cocaine, he tells everybody its cocaine, so according to the law in north carolina that makes it cocaine, just as long as my client tells people its cocaine the court shall treat it as cocaine. ABSURD RESULTS

    • Jesse,

      I should have read your comment before I wrote my response to Jon above. If I had, I would’ve used an onion instead of a carrot.

      I sincerely hope your information about what happened is incorrect. I think I’d rather the Court get something wrong once in a while — even badly wrong — then to think that justice for one person is traded off for justice for another.

  5. The State should have to test every alleged CS before prosecuting someone, period. This is bad law. This illustrates why suspects should never speak to police whatsoever when detained or arrested without an attorney present. Also, after this ruling it will be the task of top flight defense attorneys ( meaning any willing to go to the mats for a client ) to challenge in detail the state lab results, methodologies, practices and standards. Sadly few people can afford expert witnesses to expose deficiencies in the lab tests and to cross the state lab tech in detail. To allow cannabis identification based on police officers seeing similar plant matter and declaring it to be a specific genus is insanity. Only a trained forensic botanist can provide real input on plant species. The state often only does a D/L test. which is non-specific for cannabis, and a glance in a microscope for ” cytolithic hairs ” ( which are not exclusive to cannabis ) and declare it cannabis. Two inconclusive tests do not equal one definitive one, and experts like Dr. Frederick Whitehead, former FBI lab chief scientist can and will testify as to cannabis ID issues that undermine the ID and expose lab practices that do not comport with accepted standards…but he does not come cheap, I am sure. I know Justice is supposed to be blind, but high court judges should not be bling to common sense and reason. Politics…always the politics…

  6. […] doubt at trial (subject to a number of exceptions discussed by Defender Educator Phil Dixon in this prior blog post), Ward isn’t about the much lower threshold of probable cause to arrest. At the […]

  7. […] 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. ___ […]

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