Criminal Practice – Cocaine Possession – Evidence – Eaten – Testing Impossible – Constitutional – Effective Assistance

State v. James (Lawyers Weekly No. 11-07-0975, 12 pp.) (Cressie H. Thigpen Jr., J.) Appealed from New Hanover County Superior Court. (Russell J. Lanier, J.) N.C. App. Click here for the full-text opinion.

Holding: Defendant ate the crack cocaine that had been seized at the time of his arrest, then he asked the magistrate how he could be charged with possession of the cocaine after he had eaten it. Under these circumstances, the trial court correctly allowed police officers to testify that the substance appeared to be crack cocaine and tested positive for cocaine in a field test.

We find no error in defendant’s conviction of cocaine possession.

Under normal circumstances, Officer Simpson and Officer Brown’s testimony would not have been admissible. Officer Simpson’s visual identification testimony would be inadmissible because testimony identifying a controlled substance must be based on a scientifically valid chemical analysis and not mere visual inspection. Furthermore, testimony regarding the results of the narcotics field test kit (NIK) test would be inadmissible because the state did not sufficiently establish the reliability of the NIK test pursuant to any of the indices of reliability under Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004), or any alternative indicia of reliability.

Under the unique circumstances of this case, however, defendant forfeited his right to challenge the admission of this otherwise inadmissible testimony.

Even constitutional protections are subject to forfeiture as a result of improper conduct by a defendant.

Just as a defendant can lose the benefit of a constitutional right established for his or her benefit, we hold a defendant can lose the benefit of a statutory or common law legal principle established for his or her benefit in the event that he or she engages in conduct of a sufficiently egregious nature to justify a forfeiture determination. Having prevented the state from conducting additional chemical analysis by eating the crack cocaine, defendant has little basis to complain about the trial court’s decision to admit the police officers’ testimony identifying the substance as crack cocaine based on visual inspection and the NIK test results. Defendant has lost his right to challenge the admission of Officer Simpson and Officer Brown’s testimony due to his conduct of eating the crack cocaine.

After eating the crack cocaine, defendant asked Officer Simpson and his supervisor “how [Officer Simpson] was charging him since he had ate the crack.” Similarly, at the hearing before the magistrate, defendant asked, “How are they charging me with the crack, when I ate it? Or possessing the crack when I ate it?”

It is clear from defendant’s statements that he swallowed the crack cocaine for the express purpose of preventing the state from charging him with possession of cocaine.

No man shall be permitted to take advantage of his own wrong.

Given defendant’s deliberate and successful attempt to preclude the state from conducting additional chemical analysis, defendant has forfeited his right to challenge the admission of Officer Simpson’s visual identification testimony and Officer Simpson and Officer Brown’s testimony regarding the results of the NIK test. Accordingly, the trial court did not err by admitting the challenged testimony.

Defendant’s statements at the hospital were in response to questions asked by the doctor so the doctor could treat defendant. Defendant’s statements to the magistrate were spontaneous and not the result of police questioning.

Thus, defendant’s Fifth Amendment rights were not violated because he had not received Miranda warnings. Accordingly, defendant’s counsel was not ineffective when he did not move to suppress defendant’s incriminating statements.

No error.