State Of North Carolina v. Nabors

• Decision Date: 19 October 2010
• Docket Number: No. COA10-176.,COA10-176.
• Citation: 700 S.E.2d 153
• Parties: STATE of North Carolina v. Elijah Omar NABORS.
• Court: North Carolina Court of Appeals

700 S.E.2d 153

STATE of North Carolina

v.Elijah Omar NABORS.

No. COA10-176.

Court of Appeals of North Carolina.

Oct. 19, 2010.

Appeal by Defendant from judgment entered 25 August 2009 by Judge W. Russell Duke, Jr. in Harnett County Superior Court. Heard in the Court of Appeals 2 September 2010.

Attorney General Roy Cooper, by Assistant Attorney General Amy Bircher, for the State.

Jesse W. Jones, Lillington, for Defendant.

STEPHENS, Judge.

The dispositive issue in this case is whether the trial court erred in denying Defendant's motion to dismiss the charges of possession with intent to sell and deliver cocaine and sale of cocaine when the sole evidence that the substance that formed the basis of the charges was cocaine consisted of lay opinion testimony from the charging police officer and an undercover informant based on their visual observation of the substance. Because the evidence required to establish that the substance at issue was in fact a controlled substance must have been expert witness testimony “based on a scientifically valid chemical analysis and not mere visual inspection[,]” State v. Ward, 364 N.C. 133, 142, 694 S.E.2d 738, 744 (2010), the evidence was insufficient to establish that the substance at issue was cocaine. Accordingly, the trial court erred in denying Defendant's motion to dismiss the charges. We thus vacate Defendant's convictions.

I. Procedural History

On 23 May 2008, Defendant Elijah Omar Nabors was charged with one count of possession with intent to sell and deliver cocaine and one count of sale of cocaine. On 9 March 2009, Defendant was indicted on both counts as well as having attained habitual felon status. Defendant was tried before a jury on 24 and 25 April 2009. The jury returned verdicts finding Defendant guilty of the cocaine charges, and Defendant pled guilty to having attained habitual felon status. Defendant was sentenced to a term of 96 to 125 months in prison. Defendant appeals.

II. Factual Background

The State's evidence tended to show the following: On 22 May 2008, Officer Joseph Byrd of the Narcotics Division of the City of Dunn Police Department charged Christopher Gendreau with possession of cocaine. After being charged, Mr. Gendreau offered to act as an informant for the Dunn Police Department to “help himself out” with the charges.

On 23 May 2008, Mr. Gendreau set up an undercover purchase of cocaine by calling Defendant on the telephone and telling him that Mr. Gendreau needed to buy some cocaine from Defendant. Mr. Gendreau and Defendant agreed to meet at the Liberty gas station in Dunn. Officer Byrd positioned himself in the parking lot across the street from the Liberty gas station and observed Defendant's vehicle pull into the Liberty parking lot. Mr. Gendreau approached the passenger side of Defendant's car. Defendant told Mr. Gendreau that the cocaine was on the passenger door. Mr. Gendreau retrieved the alleged cocaine from the armrest of the passenger door and handed Defendant $80 in marked 20-dollar bills.

Mr. Gendreau then gave the agreed-upon signal-removing his hat and scratching his head-to indicate to Officer Byrd that the purchase had been made. Officer Byrd called his supervisor, Lieutenant Jimmy Page, and Sergeant Dallas Autry. Mr. Gendreau walked to the designated meeting location and turned the substance over to Sergeant Autry. Lieutenant Page stopped Defendant's car. Defendant was driving and Quinton Smith was in the passenger seat. Lieutenant Page retrieved the $80 in marked bills from Defendant and showed Defendant a photocopy of the money to confirm with Defendant that the money was from the Dunn Police Department.

At trial, Officer Byrd identified the substance purchased by Mr. Gendreau, State's Exhibit 2, as crack cocaine. Mr. Gendreau testified that Defendant sold him “cocaine” in the Liberty gas station parking lot. Officer Byrd acknowledged that the substance had been analyzed by the North Carolina State Bureau of Investigation (“SBI”) for proper identification and weight. However, the analyst who performed the analysis did not testify at trial.

Defendant called Quinton Smith to testify on Defendant's behalf. Mr. Smith testified that he, not Defendant, sold Mr. Gendreau cocaine at the Liberty gas station. On cross-examination, the State questioned Mr. Smith about his prior written statement which indicated that Defendant had sold cocaine to Mr. Gendreau.

III. Discussion

By Defendant's third argument, Defendant contends that the trial court erred by failing to dismiss the charges of possession with intent to sell and deliver cocaine and sale of cocaine for insufficient evidence that the substance Defendant sold to Mr. Gendreau was cocaine. We agree.

In a criminal case, the State must prove every element of a criminal offense beyond a reasonable doubt. State v. Billinger, 9 N.C.App. 573, 575, 176 S.E.2d 901, 903 (1970). Thus, in a controlled-substance case, “[t]he burden is on the State to establish the identity of any alleged controlled substance that is the basis of the prosecution.” Ward, 364 N.C. at 147, 694 S.E.2d at 747. When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Dorton, 172 N.C.App. 759, 770, 617 S.E.2d 97, 105 (citations and quotation marks omitted), disc. review denied, 360 N.C. 69, 623 S.E.2d 775 (2005).

In State v. Freeman, 185 N.C.App. 408, 648 S.E.2d 876 (2007), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663, petition for cert. dismissed, --- N.C. ----, 663 S.E.2d 429 (2008), defendant challenged the admission of lay opinion testimony from a police officer that the substance that formed the basis of the charge of possession of cocaine was crack cocaine. Police arrested defendant, an armed robbery suspect, who had in his possession what “looked like a pill bottle.” Id. at 411, 648 S.E.2d at 879. The officer testified that “two of the pills in the pill bottle ... were crack cocaine [.]” Id. at 414, 648 S.E.2d at 882. The officer's identification of the pills as crack cocaine was based solely upon the officer's visual examination of the pills and his “extensive training and experience in the field of narcotics.” Id. ¹ The two pills were tested by the Charlotte-Mecklenburg Police Crime Laboratory and the analyst who conducted the chemical analysis testified that the substances were cocaine, having a combined weight of .22 grams. Id. at 411, 416, 648 S.E.2d at 880, 882.

Defendant argued on appeal that the trial court committed plain error by allowing the officer to testify that the two pills seized were crack cocaine. Id. at 414, 648 S.E.2d at 881. In light of the analyst's testimony confirming through a chemical analysis that the substance was cocaine, the admission of the officer's statement was clearly not plain error. However, this Court went on to hold that it was permissible under Rule 701 of the North Carolina Rules of Evidence for the officer to render an opinion that the substance was crack cocaine. Id. at 414-15, 648 S.E.2d at 882. ² In State v. Llamas-Hernandez, 189 N.C.App. 640, 659 S.E.2d 79 (2008) (Steelman, J., concurring in part and dissenting in part), rev'd and dissent adopted, 363 N.C. 8, 673 S.E.2d 658 (2009), defendant challenged the admission of lay opinion testimony from two detectives that the substance which formed the basis of the prosecution was powder cocaine. A divided panel of this Court upheld the trial court's decision in reliance on Freeman. Llamas-Hernandez, 189 N.C.App. 640, 659 S.E.2d 79. However, after admitting that “the holding in Freeman concerns us[,]” the majority felt “bound to follow it.” Id. at 647, 659 S.E.2d at 83. Judge Steelman dissented in part, noting that “[t]he appearance of the cocaine in Freeman simply was not a major concern in the case because the laboratory report conclusively established the chemical composition of the substance.” Id. at 654, 659 S.E.2d at 87 (Steelman, J., dissenting). Judge Steelman distinguished Freeman on the basis that unlike powder cocaine, crack cocaine “has a distinctive color, texture, and appearance.” Id. Thus, Judge Steelman opined that “[w]hile it might be permissible, based upon these characteristics, for an officer to render a lay opinion as to crack cocaine, it cannot be permissible to render such an opinion as to a non-descript white powder.” Id.

The dissent further noted that the General Assembly had adopted “a technical, scientific definition of cocaine[.]” Id. at 652, 659 S.E.2d at 86. By doing so, “it is clear that the General Assembly intended that expert testimony be required to establish that a substance is in fact a controlled substance.” Id. Judge Steelman further reasoned that, given the technical definition of a controlled substance and the existence of statutory procedures for the admission of laboratory reports and the discovery of both those reports and underlying materials, the General Assembly never “intended ... that an officer could make a visual identification of a controlled substance[.]” Id. at 653, 659 S.E.2d at 87. Our Supreme Court reversed this Court's decision in Llamas-Hernandez and adopted Judge Steelman's dissent without further comment. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658.

Recently in Ward, our Supreme Court held that an expert witness's visual identification of an alleged controlled substance “is not sufficiently reliable for criminal prosecutions” and thus, “[u]nless 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.” Ward, 364 N.C. at 147, 694 S.E.2d at 747 (emphasis added).

In Ward, the State presented expert witness testimony that pills found...