Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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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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The court, per curiam and without an opinion, reversed the ruling of the North Carolina Court of Appeals and held, for the reasons stated in the dissenting opinion below, that the trial judge erred in allowing a detective to offer a lay opinion that 55 grams of a white powder was cocaine. The officer’s identification of the powder as cocaine was based solely on the detective’s visual observations. There was no testimony why the officer believed that the white powder was cocaine other than his extensive experience in handling drug cases. There was no testimony about any distinguishing characteristics of the white powder, such as its taste or texture.
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.
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.
Not mentioning Meadows and stating that notwithstanding Llamas-Hernandez, State v. Freeman, 185 N.C. App. 408 (2007), stands for the proposition that an officer may offer a lay opinion that a substance is crack cocaine.
Citing Ward, discussed above under expert opinions, the court held that the trial judge erred by allowing a police officer to testify that he “collected what [he] believe[d] to be crack cocaine.” Controlled substances defined in terms of their chemical composition only can be identified by the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.
Evidence > Opinions > Lay Opinions > Drug Cases > Marijuana
In this Martin County case, Defendant appealed his convictions for trafficking in heroin offenses, sale of marijuana, and delivery of marijuana, arguing several errors related to the trial court's admission of testimony regarding the identification of marijuana and errors in sentencing. The Court of Appeals found no error.
In 2021, a confidential informant (CI) contacted defendant, seeking to buy seven grams of fentanyl "and some marijuana." Slip Op. at 3. Defendant quoted prices for both, and the CI paid defendant and received two bags of the substances. Defendant was arrested shortly after leaving the scene. At trial, the detective who worked with the CI testified based on his training and experience that the plant material appeared to be marijuana. A forensic scientist from the state crime lab also testified about the plant material, concluding it was "plant material belonging to the genus cannabis containing tetrahydrocannabinol [THC]." Id. at 4. However, she also testified that the lab lacked the ability to distinguish between marijuana and hemp, and that it was possible the plant material was hemp. Defendant requested and the trial court provided a jury instruction stating that the term marijuana does not include hemp or hemp products. Defendant was subsequently convicted, and received consecutive sentences of 70 to 93 months for his offenses.
Taking up defendant’s arguments, the Court of Appeals first addressed whether it was error to allow the detective to testify that the plant material was marijuana as lay opinion testimony. Because defendant did not object to the testimony at trial, the Court reviewed for plain error. Referencing previous case law, the court noted that a police officer experienced in the identification of marijuana may testify to his visual identification of evidence as marijuana. Defendant pointed to State v. Ward, 364 N.C. 133 (2010), to argue that an officer’s visual identification is no longer reliable since the legalization of hemp. The Court distinguished Ward, noting “the standard for lay opinion testimony under Rule 701— including [the detective’s] testimony—is unchanged in light of Ward.” Slip Op. at 9. Subsequent caselaw also supported that “law enforcement officers may still offer lay opinion testimony identifying a substance as marijuana.” Id. As a result, the court found no error in admitting the testimony.
The court applied the same plain error analysis to the forensic expert’s testimony as defendant did not object to her testimony either. Because she was testifying as an expert under Rule 702, the court looked to State v. Abrams, 248 N.C. App. 639 (2016), to determine if the expert followed reliable procedures for identifying the substance as marijuana. The court was satisfied that the expert followed acceptable procedures as established by previous caselaw, and found the testimony reliable under Rule 702, meaning it was not error to admit her testimony.
Defendant also argued that it was error to deny his motion to dismiss because the State did not provide adequate evidence the substance was marijuana not hemp. The court disagreed, pointing to the testimony of the detective and forensic expert discussed above, as “our courts have consistently affirmed that testimony identifying a substance as marijuana—from a law enforcement officer as well as a forensic expert—is sufficient to take the matter to the jury.” Id. at 15.
Although the trial court used the appropriate pattern jury instruction, along with an alteration specifically requested by defendant, defendant argued it was error to omit instruction that “marijuana has a Delta-9 THC content in excess of 0.3%, while hemp has a Delta-9 THC content of 0.3% or less.” Id. at 18. Applying the plain error standard again, the court found no error, as the court held that the instruction given was an accurate statement of the law.
Finally, the court reached the sentencing issues, where defendant argued he was improperly sentenced for selling and delivering marijuana in the same transaction. The court concluded that any error if it existed was harmless, as “the trial court consolidated those convictions to run concurrently with the longer sentence for Trafficking in a Mixture Containing Heroin by Transportation.” Id. at 20. Defendant also argued that the prosecutor offered improper information that influenced sentencing considerations, as the prosecutor referenced a victim who died and a pending death by distribution charge against defendant. However, “the trial court here expressly rejected the prosecutor’s arguments regarding the separate charges on the Record and affirmatively stated that other charges would be considered in separate proceedings,” meaning there was no evidence that defendant received a sentence based on improper information. Id. at 25.
In this Beaufort County case, defendant appealed his possession of marijuana and marijuana paraphernalia convictions, arguing the trial court erred by admitting hearsay testimony and denying his motion to dismiss for insufficient evidence. The Court of Appeals found harmless error in admitting the hearsay testimony and sufficient evidence to support the convictions.
Between February and March of 2019, the Beaufort County Sheriff’s Office used a confidential informant to conduct drug buys at a car wash owned by defendant’s father. Using audio and video transmitters, the officers heard and observed defendant discuss the price of drugs and handing drugs over for sale. Defendant was subsequently convicted based on the testimony of one of the officers who arranged the buys and observed the transmitters during the buys from defendant. This officer testified that he had known defendant since he was a little boy and would recognize his voice in a recording.
Defendant argued that the testimony of the officer was hearsay, as he read directly from the search warrant and affidavit; the court disagreed, noting that the officer offered extensive testimony from personal memory, and evidence in the record supported the conclusions outside of the hearsay statements. Additionally, the court noted defendant had ample opportunity for cross-examination on the substance of the officer’s testimony, meaning even if the portions of testimony that were hearsay were admitted erroneously, they did not rise to the level of prejudicial under the plain error standard. Slip Op. at 6-7, citing State v. Ridgeway, 137 N.C. App. 144 (2000). The court likewise held that admitting the search warrant and affidavit was harmless error, as the officer was present on the stand for cross-examination about the contents of the search warrant. Id. at 9-10, citing State v. Jackson, 24 N.C. App. 394 (1975).
The basis of defendant’s motion to dismiss was the State did not admit sufficient evidence to establish that the product seized was marijuana instead of hemp. The court noted extensive evidence in the record regarding (1) defendant referring to the substance for sale as “marijuana” and (2) the officer’s testimony about the substance and the paraphernalia present that supported the conclusion that defendant was selling marijuana. Id. at 13-14. Based on this evidence the court found no error with the denial of defendant’s motion.
The trial court did not err by allowing the two officers to identify the green vegetable matter as marijuana based on their observation, training, and experience.
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.
The trial court did not err by admitting lay opinion testimony from an officer regarding whether, based on his experience in narcotics, he knew if it was common for a person selling drugs to have possession of both money and drugs. Officer also gave an opinion about whether a drug dealer would have a low amount of inventory and a high amount of money or vice versa. The testimony was based on the officer’s personal experience and was helpful to the determination of whether the juvenile was selling drugs.
The trial judge did not err by allowing officers to give lay opinion testimony that the cocaine at issue was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on the defendant were indicative of drug sales. The officers’ testimony was based on their personal knowledge of drug practices, through training and experience.