I came across an interesting out-of-state case today. In State v. McLean, __ A.3d __ (N.J. Mar. 31, 2011), the Supreme Court of New Jersey held that an officer who “observed defendant engage in behavior that the officer believed was a [hand-to-hand] narcotics transaction” could testify only about the basic facts that he observed, and could not give his lay opinion that he saw drug sales. The court concluded that such an opinion is not helpful to the jury, which is able to interpret the basic facts observed by the officer on its own, and that allowing such opinion testimony would improperly allow a witness to comment directly on the defendant’s guilt. The case got me wondering about North Carolina law concerning lay testimony by officers about drug activity. Drug identification. We know that such testimony can’t be used to identify controlled substances, except, apparently, for marijuana. A recent post on that evolving issue is here. Drug packaging. On the other hand, officers, at least those with some personal experience regarding the drug trade, can provide lay opinion testimony about the packaging of drugs. State v. Hargrave, 198 N.C. App. 579 (2009) (officers properly gave lay opinion testimony that “the cocaine [found near the defendant] was packaged as if for sale” based on the officers’ “personal experience” and “personal knowledge of drug practices”). Connection between drugs and money. Similarly, officers with appropriate personal experience may also testify about the connection between drug sales and money. Id. (officers properly testified that “the number of twenty-dollar bills found on defendant were indicative of drug sales”); In re D.L.D., __ N.C. App. __, 694 S.E.2d 395 (2010) (officer’s testimony that it is common for drug dealers to possess both money and drugs, and to have more of the one when they have less of the other, was properly “based on personal experience” and helpful to the fact-finder); State v. Bunch, 104 N.C. App. 106 (1991) (officer properly gave lay opinion testimony that among people involved in the drug trade, it was common “for one person to hold the money and for another person to carry the drugs”). Connection between drugs and items. Officers may also testify about the association between certain items and drug activity. State v. Hart, 66 N.C. App. 702 (1984) (officer properly gave lay opinion testimony that chemicals found in the defendant’s home were often used in the heroin trade); State v. Drewyore, 95 N.C. App. 283 (1989) (officer properly gave lay opinion that “a boat which was parked in front of the beach cottage was a type of boat which is often used in drug smuggling,” among other matters). But cf. State v. Givens, 95 N.C. App. 72 (1989) (officer’s lay opinion that scales are “common drug paraphernalia” was erroneously admitted because state failed to establish a proper basis for such testimony, but was not prejudicial). Drug slang. Finally, whether officers can testify about slang used in the drug trade is discussed here. As that post observes, there’s not much law directly on point in North Carolina. I didn’t find a case similar to McLean, the New Jersey case that kicked off my research. If you know of one, let me know. But based on the cases cited above, I would guess that our appellate courts would come out the other way and would allow lay opinion testimony that a hand-to-hand transaction appeared to be a drug sale.
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