In a drug case, the trial court abused its discretion by allowing the State’s expert in chemical analyses of drugs and forensic chemistry to identify the pills at issue as controlled substances when the expert’s method of making that identification consisted of a visual inspection and comparison with information in Micromedex literature, a publication used by doctors in hospitals and pharmacies to identify prescription medicines. The court concluded that the expert’s proffered method of proof was not sufficiently reliable under the first prong of the Howerton/Goode analysis. It concluded: “Unless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” The court limited its holding to Rule 702 and stated that it “does not affect visual identification techniques employed by law enforcement for other purposes, such as conducting criminal investigations.” Finally, the court indicated that “common sense limits this holding regarding the scope of the chemical analysis that must be performed.” It noted that in the case at issue, the State submitted sixteen batches of over four hundred tablets to the laboratory, and that “a chemical analysis of each individual tablet is not necessary.” In this regard, the court reasoned that the “SBI maintains standard operating procedures for chemically analyzing batches of evidence, and the propriety of those procedures is not at issue here. A chemical analysis is required in this context, but its scope may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the batch of evidence under consideration.”

In this drug case, the trial court did not commit plain error by admitting the expert opinion of a forensic chemist. On appeal, the defendant argued that the expert’s testimony failed to demonstrate that the methods she used were reliable under the Rule 702. Specifically, he argued that the particular testing process used by the Charlotte-Mecklenburg Police Department Crime Lab to identify cocaine creates an unacceptable risk of a false positive and that this risk, standing alone, renders expert testimony based on the results of this testing process inherently unreliable under Rule 702(a). The court declined to consider this argument, concluding that it “goes beyond the record.” The defendant did not object to the expert's opinion at trial. The court concluded that because the defendant failed to object at trial, the issue was unpreserved. However, because an unpreserved challenge to the performance of a trial court's gatekeeping function under Rule 702 in a criminal trial is subject to plain error review, the court reviewed the case under that standard. The court noted that its “jurisprudence wisely warns against imposing a Daubert ruling on a cold record” and that as a result the court limits its plain error review “of the trial court’s gatekeeping function to the evidence and material included in the record on appeal and the verbatim transcript of proceedings.” (quotation omitted). Here, the defendant’s false positive argument “is based on documents, data, and theories that were neither presented to the trial court nor included in the record on appeal.” The court determined that its plain error review of the defendant’s Rule 702 argument “is limited solely to the record on appeal and the question of whether or not an adequate foundation was laid before [the] expert opinion was admitted.” Here, an adequate foundation was laid. The witness, tendered as an expert in forensic chemistry, testified that she had a degree in Chemistry and over 20 years of experience in drug identification. She also testified about the type of testing conducted on the substance in question and the methods used by the Crime Lab to identify controlled substances. The witness testified that she tested the seized substance, that she used a properly functioning GCMS, and that the results from that test provided the basis for her opinion. Furthermore, her testimony indicates that she complied with Lab procedures and the methods she used were “standard practice in forensic chemistry.” This testimony was sufficient to establish a foundation for admitting her expert opinion under Rule 702.

The court also rejected the defendant’s argument that the trial court erred “by failing to conduct any further inquiry” when the witness’s testimony showed that she used scientifically unreliable methods, stating: “While in some instances a trial court’s gatekeeping obligation may require the judge to question an expert witness to ensure his or her testimony is reliable, sua sponte judicial inquiry is not a prerequisite to the admission of expert opinion testimony.”

In this drug case, the court held that although the trial court erred by allowing lay opinion testimony identifying the substance at issue as crack cocaine based on a visual identification, the error was not prejudicial where the State presented expert testimony, based on a scientifically valid chemical analysis, that the substance was a controlled substance. The trial court allowed the arresting officer, a Special Agent Kluttz with the North Carolina Department of Alcohol Law Enforcement, to identify the substance as crack cocaine. Agent Kluttz based his identification on his training and experience and his perceptions of the substance and its packaging. He was not tendered as an expert. The State also introduced evidence in the form of a Lab report and expert testimony by a chemical analyst with the North Carolina State Crime Laboratory. This witness testified that the results of testing indicated that the substance was consistent with cocaine. North Carolina Supreme Court precedent establishes two rules in this area: First, the State is required to present either a scientifically valid chemical analysis of the substance in question or some other sufficiently reliable method of identification. And second, testimony identifying a controlled substance based on visual inspection—whether presented as an expert or lay opinion—is inadmissible. Applying this law, the court agreed with the defendant that Agent Kluttz’s identification of the substance as crack cocaine was inadmissible lay opinion testimony. However given the other admissible evidence that identified the substance as a controlled substance based on a chemical analysis, the defendant failed to demonstrate prejudice and therefore to establish plain error.

In this drug case, the trial court did not abuse its discretion by admitting expert testimony identifying the substance at issue as marijuana. At trial, Agent Baxter, a forensic scientist with the N.C. State Crime Lab, testified that she examined the substance, conducted relevant tests, and that the substance was marijuana. The Daubert test requires the court to evaluate qualifications, relevance and reliability. In the instant case, the defendant did not dispute Baxter’s credentials or the relevancy of her testimony; he challenged only its reliability. The court noted that Daubert articulated five factors from a nonexhaustive list that can bear on reliability. Those factors however are part of a flexible inquiry and do not form a definitive checklist or test; the trial court is free to consider other factors that may help assess reliability. Additionally, Rule 702 does not mandate any particular procedural requirements for the trial court when exercising its gatekeeping function over expert testimony. Here, Baxter’s testimony established that she analyzed the substance in accordance with State Lab procedures, providing detailed testimony regarding each step in her process. The court concluded: “Based on her detailed explanation of the systematic procedure she employed to identify the substance …, a procedure adopted by the N.C. Lab specifically to analyze and identify marijuana, her testimony was clearly the ‘product of reliable principles and methods’ sufficient to satisfy … Rule 702(a).” The court went on to reject the defendant’s argument that Baxter’s testimony did not establish that she applied the principles and methods reliably to the facts of the case.

The evidence was sufficient with respect to 35 counts of possession of the precursor chemical pseudoephedrine with intent to manufacture methamphetamine. The court rejected the defendant’s argument that the evidence was insufficient because the substance was not chemically identified as pseudoephedrine. The court concluded that the holding of State v. Ward regarding the need to identify substances through chemical analysis was limited to identifying controlled substances, and pseudoephedrine is not listed as a controlled substance in the North Carolina General Statutes.

In a misdemeanor possession of marijuana case, the State was not required to test the substance alleged to be marijuana where the arresting officer testified without objection that based on his training the substance was marijuana. The officer’s testimony was substantial evidence that the substance was marijuana and therefore the trial court did not err by denying the defendant’s motion to dismiss.

In a trafficking in opium case, the State’s forensic expert properly testified that the substance at issue was an opium derivative where the expert relied on a chemical analysis, not a visual identification.

In a case arising from a pharmacy break-in, the court rejected the defendant’s argument that the trial court erred by failing to dismiss trafficking in opium charges because the State did not present a chemical analysis of the pills. Citing State v. Ward, 364 N.C. 133 (2010), and State v. Llamas-Hernandez, 363 N.C. 8 (2009), the court determined that State is not required to conduct a chemical analysis on a controlled substance in order to sustain a conviction under G.S. 90-95(h)(4), provided it has established the identity of the controlled substance beyond a reasonable doubt by another method of identification. In the case at hand, the State’s evidence did that. The drug store’s pharmacist manager testified that 2,691 tablets of hydrocodone acetaminophen, an opium derivative, were stolen from the pharmacy. He testified that he kept “a perpetual inventory” of all drug items. Using that inventory, he could account for the type and quantity of every item in inventory throughout the day, every day. Accordingly, he was able to identify which pill bottles were stolen from the pharmacy by examining his inventory against the remaining bottles, because each bottle was labeled with a sticker identifying the item, the date it was purchased and a partial of the pharmacy’s account number. These stickers, which were on every pill bottle delivered to the pharmacy, aided the pharmacist in determining that 2,691 tablets of hydrocodone acetaminophen were stolen. He further testified, based on his experience and knowledge as a pharmacist, that the weight of the stolen 2,691 pill tablets was approximately 1,472 grams. Based on his 35 years of experience dispensing the same drugs that were stolen and his unchallenged and uncontroverted testimony regarding his detailed pharmacy inventory tracking process, the pharmacist’s identification of the stolen drugs as more than 28 grams of opium derivative hydrocodone acetaminophen was sufficient evidence to establish the identity and weight of the stolen drugs and was not analogous to the visual identifications found to be insufficient in Ward and Llamas–Hernandez.

In this conspiracy to traffic in opiates case, the evidence was sufficient to support the conviction where the State’s expert analyzed only one of the pills in question and then confirmed that the remainder were visually consistent with the one that was tested. The police seized 20 pills weighing 17.63 grams. The State’s expert analyzed one of the pills and determined that it contained oxycodone, an opium derivative with a net weight of 0.88 grams. The expert visually examined the remaining 19 pills and found them to have “the same similar size, shape and form as well as the same imprint on each of them.” The defendant argued that the visual examination was insufficient to precisely establish how much opium derivative was present in the seized pills. The court rejected this argument, citing prior precedent establishing that a chemical analysis of each individual pill is not necessary; the scope of the analysis may be dictated by whatever sample is sufficient to make a reliable determination of the chemical composition of the entire quantity of pills under consideration.

(1) In a drug case, the court followed State v. Meadows, 201 N.C. App. 707 (2010), and held that the trial court erred by allowing an offer to testify as an expert concerning the use and reliability of a NarTest machine. (2) The trial court erred by admitting testimony by an expert in forensic chemistry regarding the reliability of a NarTest machine. Although the witness’s professional background and comparison testing provided some indicia of reliability, other factors required the court to conclude that the expert's proffered method of proof was not sufficiently reliable. Among other things, the court noted that no case has recognized the NarTest as an accepted method of analysis or identification of controlled substances and that the expert had not conducted any independent research on the machine outside of his duties as a NarTest employee.