State Of North Carolina v. Ward

• Decision Date: 17 June 2010
• Docket Number: No. 365PA09.,365PA09.
• Parties: STATE of North Carolinav.Jimmy Waylon WARD.
• Court: North Carolina Supreme Court

364 N.C. 133
694 S.E.2d 738

STATE of North Carolina
v.
Jimmy Waylon WARD.

No. 365PA09.

Supreme Court of North Carolina.

June 17, 2010.

694 S.E.2d 739

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, --- N.C.App. ----, 681 S.E.2d 354 (2009), finding error in part in a judgment entered 14 January 2008 by Judge Charles H. Henry in Superior Court, New Hanover County, and remanding for a new trial. Heard in the Supreme Court 15 February 2010.
Roy Cooper, Attorney General, by Amy Kunstling Irene, Assistant Attorney General, for the State-appellant.

Paul F. Herzog, Fayetteville, for defendant-appellee.

Anne Bleyman, Chapel Hill, and Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Counsel for North Carolina Advocates for Justice, amicus curiae.

BRADY, Justice.

In the case sub judice the State presented expert witness testimony at trial to the effect that pills found on Defendant Jimmy Waylon Ward's person, in his vehicle, and at his residence were pharmaceuticals classified as controlled substances under the North Carolina Controlled Substances Act. N.C.G.S. ch. 90, art. 5 (2009). The issue for our review is whether the trial court abused its discretion by permitting the State's expert witness to identify certain pills when the expert's methodology consisted solely of a visual inspection process. Under the facts of this case, the testifying expert's visual identification of the purported controlled substances is not sufficiently reliable under N.C.G.S. § 8C-1, Rule 702. Accordingly, the trial court abused its discretion, and we affirm the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

In relevant part, the State's evidence at trial tended to show that Mandy Pope visited the New Hanover County Sheriff's Office, Vice and Narcotics Division, on 22 August 2006 seeking to assist law enforcement in an investigation of the individual who allegedly supplied her mother with illicit pharmaceuticals on a regular basis. Pope telephoned defendant from the Sheriff's Office and arranged to meet him at the Carolina Beach Exxon station for the purpose of purchasing thirty Lorcet pills for six dollars per pill. Lorcet is an opium derivative , a Schedule III controlled substance. After law enforcement placed a transmitter device in her purse and gave her three hundred dollars in United States currency, Pope traveled with Detective Nancy Willaford in an undercover minivan to the designated Exxon station, arriving shortly after 8:00 p.m. Several other undercover law enforcement officers conducted surveillance and provided security and back-up support. Defendant arrived five to ten minutes later and parked his black Chevrolet Monte Carlo next to the minivan. Pope then exited the minivan and entered defendant's vehicle. Detective Willaford remained in the minivan. Pope and defendant conversed in his vehicle, and then both exited when defendant retrieved something from the trunk of his vehicle. Pope and defendant then returned to defendant's vehicle, and Pope purchased from defendant thirty blue, oval-shaped pills, which Pope believed to be Lorcets, for one hundred eighty dollars in United States currency. Pope then exited defendant's vehicle, entered the minivan, and traveled back to the Sheriff's Office with Detective Willaford. Defendant left the Exxon station in his vehicle, and several law enforcement officers continued their surveillance by following him to his residence. Pope returned the remaining money and delivered the pills she purchased from defendant to law enforcement.

Based on the officers' surveillance and the events at the Carolina Beach Exxon station, warrants were obtained the next day, 23 August 2006, to arrest defendant and search his residence. After observing a black Monte Carlo leave the mobile home park where defendant resided, law enforcement officers stopped the vehicle and confirmed that defendant was the operator. Defendant was arrested and his person and vehicle were searched incident to the arrest. Law enforcement recovered three pill bottles and six hundred twenty dollars in United States currency from defendant. One bottle contained blue tablets and had a label attached indicating thirty tablets of Hydrocodone in the

694 S.E.2d 740

name of Jimmy W. Ward. A second medicine bottle with an illegible affixed label contained white tablets. The third bottle contained three different kinds of pills and had a label attached indicating sixty tablets of generic Xanax in the name of defendant's cousin, Manuel Ward. Law enforcement officers also searched the trunk of defendant's vehicle and discovered several more bottles of pills and a bank envelope containing blue pills. A prescription bottle and an additional nine hundred five dollars were retrieved from under the trunk's carpeting. Law enforcement officers then searched defendant's residence and storage shed and another vehicle at the premises. From this search, officers seized a number of items, including a digital scale, a silver metal pipe fashioned as a smoking device, a substance resembling off-white rocks, a bottle containing ninety-three tablets with an affixed label indicating Hydrocodone for Manuel Ward, and a plastic drinking cup containing full and half pill tablets.

On 25 September 2006, the New Hanover County Grand Jury returned six true bills of indictment charging defendant with numerous crimes related to his activities on 22 and 23 August 2006 and the resulting searches previously described. At trial Special Agent Irvin Lee Allcox, a chemist in the Drug Chemistry Section of the State Bureau of Investigation (SBI) crime laboratory, was qualified and testified as an expert in chemical analysis of drugs and forensic chemistry. He testified to working over thirty-four years for the SBI, including the most recent twenty-four years as a chemist in the SBI crime laboratory. He stated he had previously testified as an expert in forensic chemistry over five hundred times in state and federal courts. Among the items the SBI laboratory received for examination from the New Hanover County Sheriff's Office pertaining to this case, Special Agent Allcox identified the following controlled substances: Dihydrocodeinone, Hydrocodone, and Oxycodone, which are opium derivatives, and cocaine, Amphetamine, Alprazolam (Xanax), Diazepam (Valium), and Methylphenidate (Ritalin). He also identified Carisoprodol (Soma), which is not a controlled substance.

In response to questions concerning the identification process, Special Agent Allcox testified that of the sixteen collections of items submitted, he conducted a chemical analysis on “about half of them.” The remaining tablets were identified solely by visual inspection and comparison with information provided by Micromedex ¹ literature, which Special Agent Allcox described as a “medical publication that is used by the doctors in hospitals and pharmacies to identify prescription medicine.” According to Special Agent Allcox, the SBI has used Micromedex in some capacity throughout the nearly thirty-five years he has been associated with the agency. He testified that through “a listing of all the pharmaceutical markings,” Micromedex can help “identify the contents, the manufacturer and the type of substances in the tablets.” He believed that counterfeit tablets were obvious to distinguish because they lacked the uniform color, shape, and markings associated with the high standards of the pharmaceutical industry. In his opinion, no tablets seized in this case were counterfeit.

When asked why he performed only a visual inspection with Micromedex literature on some of the tablets and a chemical analysis on others, Special Agent Allcox focused his response on concerns for maximizing time and resources: “[W]e have limited resources and we have to weed out-we have to analyze the most important items.... [W]e don't have the resources to analyze everything that's submitted.” He also indicated that SBI standard operating procedures determined which substances received which type

694 S.E.2d 741

of analysis depending on the information provided to the laboratory by the law enforcement officer submitting the evidence. Physical evidence submitted to the SBI laboratory for analysis must be accompanied by Form SBI-5, “Request for Examination of Physical Evidence.” Crime Lab Div., N.C. State Bureau of Investigation Evidence Guide 11, 13-15, 20 (Jan. 1, 2010), available at http:// www. ncdoj. gov/ About- DOJ/ State- Bureau- of- Investigation/ Crime- Lab/ NCSBI- Evidence- Guide. aspx. In Part B of Form SBI-5, the requesting officer is asked to give a “[d]escription of the incident (Brief Summary of the events of the crime)” or to attach a copy of the investigative report. Id. at 15.

Special Agent Allcox described the significance of the requesting officer's description of the incident under investigation in terms of which type of analysis he performed. For instance, one collection of thirty pills in this case was not chemically analyzed because, based on the submission sheet given to the laboratory, the number of tablets submitted could potentially support only a misdemeanor charge of possession of a controlled substance. Under standard operating procedures, substances supporting only misdemeanor charges were routinely identified solely by visual inspection with comparison to the Micromedex literature. However, substances that were submitted to the laboratory under circumstances that would support felony charges received “a complete analysis” pursuant to laboratory procedures. (Emphasis added.) Defense counsel was quick to highlight on cross-examination that the collection of thirty pills at issue was ultimately used to bring a felony trafficking charge and not a misdemeanor possession charge. In response, Special Agent Allcox testified: “If the officer had indicated that it was an undercover buy case when submitting these 30 tablets, then I would have done a complete...