Visual Identification of Drugs Takes Another Hit

Update: On February 16, the North Carolina Court of Appeals issued an opinion in State v. Davis, in which law enforcement officers were allowed to offer lay testimony without objection that the substance the defendant sold them was crack cocaine. In a footnote, the Davis panel stated that Llamas-Hernandez did not overrule Freeman as to an officer’s lay opinion identifying crack cocaine. In any event, the panel found that Llamas-Hernandez did not control the case at bar because the defendant in Davis had failed to challenge the admissibility of the officers’ testimony. Meadows was not cited.

Original Post: On January 5, the North Carolina Court of Appeals handed down yet another opinion addressing the admissibility of visual identifications of drugs, State v. Meadows. Defendant Meadows was convicted of possession of cocaine after Detective Springs, concealed in “the hedge and the darkness,” leaped out and shined his flashlight on Meadows, who then threw a plastic bag with white contents to the ground. The State put on evidence that the white substance was crack cocaine based on: 1) the results of the NarTest machine, and 2) the testimony of Detective Springs. The bulk of the opinion deals with the NarTest, which purports to identify controlled substances using florescence. Held: the trial court abused its discretion in allowing an officer to give expert testimony regarding the NarTest because there was insufficient evidence of the reliability of the testing method.

Aside from the disfavored NarTest, the State’s only evidence that the substance was crack was the lay testimony of Detective Springs that he “collected what [he] believe[d] to be crack cocaine[,]” presumably based on its appearance. The Court ruled that the trial court erred in admitting this testimony, entitling the defendant to a new trial. In support of its holding, the Court cited State v. Ward, ___ N.C.App. ___, 681 S.E.2d 354 (2009), disc. review allowed, ___ N.C. ___ S.E.2d ___ ( 2009). As discussed in Jeff’s prior post, Ward held that the expert testimony of an SBI agent was not sufficiently reliable with regard to identifying prescription drugs where the agent visually examined the markings, sizes, shapes, and colors of pills and compared them using a reputable reference text; but did not subject them to chemical analysis.

I find it interesting that the Meadows panel applied the Ward prescription drugs case without any discussion of the recent cocaine cases that were relied upon by the Ward court. You may recall from my previous post that State v. Llamas Hernandez, 363 N.C. 8 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640 (2008), held that lay witnesses may not offer testimony that a powder is cocaine based on visual examination alone. The North Carolina Supreme Court did not clarify whether the holding in Llamas-Hernandez extended to crack cocaine cases as well as to powder ones. At that point, I queried whether Llamas-Hernandez overruled State v. Freeman, 185 N.C. App. 408 (2007), in which a police officer was allowed to give lay opinion testimony that he could tell a substance was crack by looking at it. Alternatively, would North Carolina courts determine that the crack versus powder distinction was meaningful enough to merit different treatment with regard to visual identifications?

In light of Meadows, the answers to these questions appear to be “yes,” Freeman has been overruled, and “no,” powder and crack do not merit different treatment in this evidentiary context. The Meadows panel did not draw any distinction based on the type of drug in question. Instead the Court broadly applied the language from Ward requiring chemical analysis for substances defined by their chemical makeup. In sum, there appears to be a trend towards rejecting visual examination as the sole means of identification regardless of the category of drug in question. North Carolina courts do not seem to be drawing a distinction based on whether the proffered evidence was expert or lay testimony. Meadows (lay) applied Ward (expert), which applied Llamas-Hernandez (lay).  One could argue that the holding in State v. Fletcher, 92 N.C. App. 50 (1988) (allowing officer to offer expert opinion testimony that substance was marijuana based on its appearance), has been called into question. However, the fact that the North Carolina Supreme Court has granted discretionary review in Ward suggests that we will be further enlightened on this topic soon.