Questions of Law: Untangling Admissibility in State v. Gibbs.
Is fentanyl an opiate? That’s the question the prosecutor asked a witness in State v Gibbs. The trial court overruled the defendant’s objection, and the witness was permitted to testify that fentanyl was both an opioid and an opiate. In an unpublished opinion (“Gibbs I”), the Court of Appeals ruled this was error, reversing a conviction for trafficking by possession. Our Supreme Court then reversed the Court of Appeals. In a concise, per curiam opinion, our Supreme Court declared that whether fentanyl is an opiate is a question of law, and it remanded for reconsideration. In a subsequent unpublished opinion (“Gibbs II”), the Court of Appeals determined that fentanyl is an opiate as a matter of law. Reasoning that there was no need for an expert witness to testify on the issue, the Court of Appeals concluded that there was no error in the defendant’s conviction for trafficking. Of course, whether such testimony is necessary does not resolve whether this particular evidence was admissible. Gibbs is an evidence case, but the rule it illustrates is elusive. This post examines Gibbs to ascertain whether the prosecutor asked a permissible question.
A. Classification of fentanyl.
Opium “is a natural substance extracted from the unripe seed pods of the opium poppy, papaver somniferum.” State v. Garrett, 277 N.C. App. 493, 497–98, 860 S.E.2d 282, 286, disc. review denied, __ N.C. __, 860 S.E.2d 916 (2021). “Opiates” are defined as natural analgesic drugs derived from opium, e.g., heroin, morphine, and codeine, whereas “opioids” are a category of drugs either partially or wholly synthetic, designed to mimic the effects of opium. Id. at 498, 860 S.E.2d at 286. Fentanyl is wholly manmade with no natural components, hence an opioid. Id. These definitions are not, however, universal, and “there is significant variation and overlap.” Id.
My colleague Phil Dixon has posted previously about simple possession of fentanyl. As he noted, fentanyl is classified as a Schedule II controlled substance. N.C.G.S. § 90-90(2)(h). (The relevant statutes have recently been amended to clarify the criminalization of fentanyl.) Relevant to Gibbs, Section 90-90 was amended in July 2017. The list of controlled substances including fentanyl did not change, but whereas it previously encompassed “the following opiates,” it subsequently encompassed “the following opiates or opioids.” Compare N.C.G.S. § 90-90(2) (2015), with id. (2019). The defendant’s convictions in Gibbs included possession with intent to sell or deliver a Schedule II controlled substance, i.e., fentanyl. That charge was not at issue.
