Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/21/2021
E.g., 10/21/2021
State v. Nabors, 365 N.C. 306 (Dec. 9, 2011)

The court reversed a decision by the court of appeals in State v. Nabors, 207 N.C. App. 463 (Oct. 19, 2010) (the trial court erred by denying the defendant’s motion to dismiss drug charges when the evidence that the substance at issue was crack cocaine consisted of lay opinion testimony from the charging police officer and an undercover informant based on visual observation; the court held that State v. Ward, 364 N.C. 133 (2010), calls into question “the continuing viability” of State v. Freeman, 185 N.C. App. 408 (2007) (officer can give a lay opinion that substance was crack cocaine),and requires that in order to prove that a substance is a controlled substance, the State must present expert witness testimony based on a scientifically valid chemical analysis and not mere visual inspection). The supreme court declined to address whether the trial court erred in admitting lay testimony that the substance at issue was crack cocaine, instead concluding that the testimony by the defendant’s witness identifying the substance as cocaine was sufficient to withstand the motion to dismiss. 

State v. Ward, 364 N.C. 133 (June 17, 2010)

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 erred but did not commit plain error by allowing the State’s expert to testify that the pills were hydrocodone. With no objection from the defendant at trial, the expert testified that she performed a chemical analysis on a single tablet and found that it contained hydrocodone. On appeal the defendant asserted that this was error because the expert did not testify to the methods used in her chemical analysis. The court agreed holding: “it was error for the trial court not to properly exercise its gatekeeping function of requiring the expert to testify to the methodology of her chemical analysis.” However, the court concluded that the error does not amount to plain error “because the expert testified that she performed a “chemical analysis” and as to the results of that chemical analysis. Her testimony stating that she conducted a chemical analysis and that the result was hydrocodone does not amount to “baseless speculation,” and therefore her testimony was not so prejudicial that justice could not have been done.

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.”

The evidence was sufficient to sustain the defendant’s conviction for possession of methamphetamine. After the police discovered a white crystalline substance in a vehicle, they arrested the defendant who had been sitting in the driver’s seat of the car. While being transported to a detention center the defendant admitted to a detective that she had “a baggie of meth hidden in her bra.” Upon arrival at the detention center, an officer found a bag of “crystal-like” substance in the defendant’s bra. At trial an officer testified without objection to the defendant’s statement regarding the methamphetamine in her bra. Additionally, the actual substance retrieved from her bra was admitted as exhibit. However, the State did not present any other evidence regarding the chemical composition of substance. On appeal, the defendant argued that the State failed to present evidence of the chemical nature of the substance in question. Under Ward, some form of scientifically valid chemical analysis is required unless the State establishes that another method of identification is sufficient to establish the identity of a controlled substance beyond a reasonable doubt. Citing the state Supreme Court’s opinions in Nabors and Ortiz-Zape, the court held that the defendant’s admission constitutes sufficient evidence that the substance was a controlled substance.

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 committed plain error by allowing a law enforcement officer to testify that pills found at the defendant’s home were Alprazolam and Oxycodone, where the identification was based on a visual inspection of the pills and use of a website, drugs.com. Under North Carolina law, pills cannot be identified as controlled substances by visual identification.

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.

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.

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 counterfeit controlled substance case, the trial court committed plain error by admitting evidence identifying a substance as tramadol hydrochloride based solely upon an expert’s visual inspection. The State’s witness Brian King, a forensic chemist with the State Crime Lab, testified that after a visual inspection, he identified the pills as tramadol hydrochloride. Specifically he compared the tablets’ markings to a Micromedex online database. King performed no chemical analysis of the pills. Finding that State v. Ward, 364 N.C. 133 (2010), controlled, the court held that in the absence of a scientific, chemical analysis of the substance, King’s visual inspection was insufficient to identify the composition of the pills.

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 drug case, an officer properly was allowed to identify the substance at issue as marijuana based on his “visual and olfactory assessment”; a chemical analysis of the marijuana was not required.

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.

(1) The trial court improperly allowed an officer to testify that a substance was cocaine based on a visual examination. (2) However, that same officer was properly allowed to testify that a substance was marijuana based on visual identification. (3) In a footnote, the court indicated that the defendant’s statement that he bought what he believed to be cocaine was insufficient to identify the substance at issue.

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.

An expert in forensic chemistry properly made an in-court visual identification of marijuana. Citing State v. Fletcher, 92 N.C. App. 50, 57 (1988), but not mentioning State v. Ward, 364 N.C. 133 (June 17, 2010), the court noted that it had previously held that a police officer experienced in the identification of marijuana may testify to a visual identification.

Holding that the trial court committed plain error by admitting the testimony of the State’s expert chemist witness that the substance at issue was hydrocodone, an opium derivative. The State’s expert used a Micromedics database of pharmaceutical preparations to identify the pills at issue according to their markings, color, and shape but did no chemical analysis on the pills. Note that although this decision was issued before the North Carolina Supreme Court decided Ward (discussed above), it is consistent with that case.

(1) In this drug case, testimony from the State’s expert sufficiently established a trafficking amount of opium (over 4 grams). Following lab protocol, the forensic analyst grouped the pharmaceutically manufactured pills seized into four categories based on their unique physical characteristics. He then chemically analyzed one pill from three categories and determined that they tested positive for oxycodone. He did not test the pill in the final category because the quantity was already over the trafficking amount. Following prior case law, the court held that the analyst was not required to chemically analyze each individual tablet; his testimony provided sufficient evidence for a trafficking amount of opium such that an instruction on lesser included drug offenses was not required. The court also noted that any deviation that the analyst might have taken from the established methodology for analyzing controlled substances went to the weight of his testimony not its admissibility. (2) The analyst’s testimony was properly admitted under Rule 702. The court began by holding that the analyst’s testimony was the product of reliable principles and methods. Next, the court rejected the defendant’s central argument that the analyst should not have been permitted to testify regarding pills that were not chemically analyzed and therefore that his testimony was not based on sufficient facts or data and that he did not apply the principles and methods reliably to the facts of the case. Rejecting this argument, the court noted the testing and visual inspection procedure employed by the analyst, as described above.

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 this opium trafficking case where the State’s witness was accepted by the trial court as an expert witness without objection from defendant and the defendant did not cross-examine the expert regarding the sufficiency of the sample size and did not make the sufficiency of the sample size a basis for his motion to dismiss, the issue of whether the two chemically analyzed pills established a sufficient basis to show that there were 28 grams or more of opium was not properly before this Court. (2) Assuming arguendo that the issue had been properly preserved, it would fail. The court noted: “[a] chemical analysis is required . . . , 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.” (quotation omitted). It noted further that “[e]very pill need not be chemically analyzed, however” and in State v. Meyers, 61 N.C. App. 554, 556 (1983), the court held that a chemical analysis of 20 tablets selected at random, “coupled with a visual inspection of the remaining pills for consistency, was sufficient to support a conviction for trafficking in 10,000 or more tablets of methaqualone.” Here, 1 pill, physically consistent with the other pills, was chosen at random from each exhibit and tested positive for oxycodone. The expert testified that she visually inspected the remaining, untested pills and concluded that with regard to color, shape, and imprint, they were “consistent with” those pills that tested positive for oxycodone. The total weight of the pills was 31.79 grams, exceeding the 28 gram requirement for trafficking. As a result, the State presented sufficient evidence to conclude that the defendant possessed and transported 28 grams or more of a Schedule II controlled substance.

The trial court did not err by denying the defendant’s motion to dismiss a charge of trafficking by sale or delivery in more than four grams and less than fourteen grams of Dihydrocodeinone when the State’s expert sufficiently identified the substance at issue as a controlled substance. Special Agent Aharon testified as an expert in chemical analysis. She compared the eight tablets at issue with information contained in a pharmaceutical database and found that each was similar in coloration and had an identical pharmaceutical imprint; the pharmaceutical database indicated that the tablets consisted of hydrocodone and acetaminophen. Agent Aharon performed a confirmatory test on one of the tablets, using a gas chromatograph mass spectrometer. This test revealed that the tablet was an opiate derivative. The tablets weighed a total of 8.5 grams. Relying on State v. Ward, 364 N.C. 133 (2010), the defendant argued that because the State cannot rely upon a visual inspection to identify a substance as a controlled substance, the State was required to test a sufficient number of pills to reach the minimum weight threshold for a trafficking offense. The court concluded that even if the issue had been properly preserved, the defendant’s argument was without merit, citing State v. Myers, 61 N.C. App. 554, 556 (1983) (a chemical analysis test of a portion of pills, coupled with a visual inspection of the rest for consistency, supported a conviction for trafficking in 10,000 or more tablets of methaqualone).

In a case in which the defendant was convicted of trafficking in more than 400 grams of cocaine, the trial court did not err by allowing the State’s expert to testify that the substance was cocaine where the expert combined three separate bags into one bag before testing the substance. After receiving the three bags, the expert performed a preliminary chemical test on the material in each bag. The test showed that the material in each bag responded to the reagent in exactly the same manner. She then consolidated the contents of the three bags into a single mixture, performed a definitive test, and determined that the mixture contained cocaine. The defendant argued that because the expert combined the substance in each bag before performing the definitive test, she had no basis for opining that each bag contained cocaine, that all of the cocaine could have been contained in the smallest of the bags, and thus that he could have only been convicted of trafficking in cocaine based upon the weight of cocaine in the smallest of the three bags. Relying on State v. Worthington, 84 N.C. App. 150 (1987), and other cases, the court held that the jury should decide whether the defendant possessed the requisite amount of cocaine and that speculation concerning the weight of the substance in each bag did not render inadmissible the expert’s testimony that the combined mixture had a specific total weight.

Relying on State v. Meadows, 201 N.C. App. 707 (2010) (trial court abused its discretion by allowing an officer to testify that substances were cocaine based on NarTest field test), the court held that the trial abused its discretion by admitting an officer’s testimony that narcotics indicator field test kits indicated the presence of cocaine in the residence in question.

(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.

A new trial was required in a drug case where the trial court erred by admitting expert testimony as to the identity of the controlled substance when that testimony was based on the results of a NarTest machine. Applying Howerton v. Arai Helmet, Ltd., 358 N.C. 440 (2004), the court held that the State failed to demonstrate the reliability of the NarTest machine.

Because a lab that tested a controlled substance was neither licensed nor accredited, expert testimony regarding testing done at that lab on the substances at issue was inadmissible.

(1) In a drug case, no plain error occurred when the trial court allowed the State’s expert forensic chemist to testify as to the results of his chemical analysis of the substance in question. Through the expert’s testimony as to his professional background and use of established forensic techniques, the State met its burden of establishing “indices of reliability,” as contemplated in Howerton. The court noted that although the laboratory was not accredited the defendant provided no legal authority establishing that accreditation is required when the forensic chemist who conducted the analysis at issue testifies at trial (the lab was licensed). (2) The court rejected the defendant’s argument that the expert’s lab report was inadmissible under G.S. 8-58.20(b) because the lab was not accredited. That statutory provision is relevant only when the State seeks to have the report admitted without the testimony of the preparer.

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