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.