Criminal Practice – Drug Possession – Crack Cocaine – Lay Testimony – Insufficient

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State v. Nabors. (Lawyers Weekly No. 10-07-1012, 14 pp.) (Linda Stephens, J.) Appealed from Harnett County Superior Court. (W. Russell Duke Jr., J.) N.C. App. Click here to read the full text of the opinion.

Holding: Where the only evidence that the substance at issue was in fact crack cocaine came from an informant and the arresting officer based on their visual observation of the substance, this was insufficient to prove that the substance was actually a controlled substance.

We vacate defendant’s convictions of possession with intent to sell and deliver cocaine, sale of cocaine and being a habitual felon.

The evidence required to establish that the substance at issue was in fact a controlled substance must have been expert witness testimony “based on a scientifically valid chemical analysis and not mere visual inspection.” State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010).

Officer Byrd testified that he had been a sworn law enforcement officer for “approximately three years” and had received specialized training in narcotics investigation consisting of a “basic narcotic investigation class [which] include[d] investigations of packaging, sale, and distribution of [controlled substance] products.” When asked by the prosecutor to identify state’s exhibit number 2, Officer Byrd responded, “It’s crack cocaine.”

Informant Gendreau acknowledged that he had “personal experience with drug use” in that he used crack cocaine for “about two-and-a-half years, on and off” between “’07 and ’08.” When asked by the prosecutor what he received from defendant, Gendreau testified, “A white, rock-like substance that I knew to be crack cocaine.”

Neither Officer Byrd nor Gendreau was qualified or testified as an expert in the chemical analysis of drugs, forensic chemistry or another related field. Accordingly, their opinion testimony as to the identity of the substance at issue was insufficient to establish that the substance introduced here was in fact a controlled substance.

Furthermore, neither Officer Byrd’s nor Gendreau’s testimony was “based on a scientifically valid chemical analysis and not mere visual inspection.” Ward. There is no indication that Officer Byrd or Gendreau did anything more than engage in conjecture that the substance purchased from defendant was cocaine based on their previous encounters with cocaine and their visual observation of the substance in this case.

While State v. Llamas-Hernandez, 189 N.C. App. 640, 659 S.E.2d 79 (2008) (Steelman, J., concurring in part and dissenting inpart), rev’d and dissent adopted, 363 N.C. 8, 673 S.E.2d 658 (2009), contemplated that “it might be permissible” for an officer to render a lay opinion as to whether a substance is crack cocaine based on crack cocaine’s “distinctive color, texture, and appearance,” mere lay opinion that a substance is a controlled substance based solely on its physical appearance is insufficient evidence from which a jury could find beyond a reasonable doubt that the substance is, in fact, controlled.

Indeed, as noted in Ward, the legislature has acknowledged the existence of counterfeit controlled substances by imposing liability for actions related to  counterfeit controlled substances, see G.S. § 90-95(a)(2), and has clearly contemplated that the physical appearance of a counterfeit controlled substance would be “substantially identical to a specified controlled substance.” G.S. § 90-87(6)(b)(3).

Officer Byrd’s and Gendreau’s conjecture based on their previous encounters with cocaine and their observation of the substance here was surely not the “scientifically valid chemical analysis” of the substance required “to establish the identity of the controlled substance beyond a reasonable doubt.” Accordingly, there was insufficient evidence that the substance that formed the basis of the controlled substance charges in this case was cocaine, and the trial court thus erred in denying defendant’s motion to dismiss those charges. Defendant’s convictions on those charges are vacated. As a result, defendant’s conviction as a habitual felon is also vacated.

Vacated.