State v. Nabors

• Decision Date: 09 December 2011
• Docket Number: No. 479PA10.,479PA10.
• Citation: 365 N.C. 306,718 S.E.2d 623
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Elijah Omar NABORS.

365 N.C. 306

718 S.E.2d 623

STATE of North Carolina

v.Elijah Omar NABORS.

No. 479PA10.

Supreme Court of North Carolina.

Dec. 9, 2011.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 700 S.E.2d 153 (2010), finding error in a judgment entered on 25 August 2009 by Judge W. Russell Duke, Jr. in Superior Court, Harnett County, and vacating defendant's convictions. Heard in the Supreme Court on 7 September 2011.

Roy Cooper, Attorney General, by Charles E. Reece and Kathleen N. Bolton, Assistant Attorneys General, for the State-appellant.

Jesse W. Jones, Lillington for defendant-appellee.

PARKER, Chief Justice.

The issue in this case is whether the Court of Appeals erred in reversing the trial court's denial of defendant's motion to dismiss at the close of all evidence. For the reasons stated herein, we reverse the decision of the Court of Appeals.

Defendant was arrested following an undercover drug transaction at a convenience store parking lot in Dunn, North Carolina. Subsequently, defendant was indicted for one count each of possession with intent to sell and deliver cocaine and sale of cocaine and for being an habitual felon. Defendant was convicted of both cocaine charges and pled guilty to habitual felon status. The trial court entered judgment sentencing defendant in the presumptive range to imprisonment for a minimum term of 96 months and a maximum term of 125 months. Defendant gave timely notice of appeal to the Court of Appeals.

At trial the State's evidence tended to show the following. Christopher Gendreau (Gendreau), who had been charged with possession of cocaine, volunteered to assist police by acting as the buyer in an undercover cocaine purchase from defendant, with whom Gendreau was familiar. From inside a police vehicle, Gendreau telephoned defendant and said he needed to buy something from defendant. The two agreed to meet at a Liberty gas station in Dunn to complete the transaction. Police officers positioned themselves near the gas station to observe Gendreau make the purchase or to be prepared to intercept defendant thereafter. When defendant pulled into the Liberty parking lot, he was driving an Oldsmobile; and another person, later identified as Quinton Smith (Smith), was sitting in the passenger seat. Gendreau approached the passenger side of the vehicle, and defendant told him to retrieve the drugs from the armrest panel inside the passenger door. Gendreau then handed eighty dollars in pre-marked bills to defendant. After completing the transaction, Gendreau gave the officers the “take-down” signal. The officers stopped defendant's vehicle and, after arresting him, found the marked bills and a large amount of other cash on defendant's person. Officers also arrested Smith, who was later charged with possession of marijuana.

Gendreau testified that the substance he purchased from defendant was “[a] white, rock-like substance that [he] knew to be crack cocaine,” a substance with which he had personal experience as a drug user during the two and one-half years preceding these events. Agent Joseph Byrd (Byrd), a three-year officer with specialized training in narcotics investigation who was part of the take-down team, testified that the substance collected from Gendreau immediately following the purchase was crack cocaine. Byrd also testified that this substance had been analyzed by the North Carolina State Bureau of Investigation to determine its identification and weight. Defendant did not object to this or any other testimony.

During defendant's case in chief, defense counsel called Smith to testify on defendant's behalf. The trial court conducted a voir dire in which the court questioned Smith regarding a statement he had previously signed incriminating defendant and inquired whether Smith understood the implications of changing his story on the witness stand. Smith confirmed that he intended to recant his previous statement and explained, “I just don't want to see nobody go to jail for something I did.” On direct examination the thrust of Smith's testimony was that he, not defendant, arranged and executed the cocaine sale, as evidenced by the following testimony:

Q. And do you recall being at the Liberty gas station or convenience store?

A. Yes, sir.

Q. And your reason for being there was what?

A. To see Chris [Gendreau].

....

Q. And what was your purpose for seeing Chris?

A. He had wanted some cocaine.

Q. Did you have cocaine?

A. Yes, sir.

....

Q. Who had possession of the drugs when Chris took delivery of the cocaine?

A. I had it.

Q. Who had it?

A. I did. Oh, he—I had put it on the door panel.

Q. The what?

A. The door panel. Like on the door panel, he had reached in and got it from there.

....

Q. Did you get the drugs from [defendant]?

A. Oh, no, sir.

Q. So you had those with you?

A. Yes, sir.

....

Q. And which side of the car did Chris some [sic] to?

A. Passenger side.

Q. And what—was [defendant] in the vehicle at that time?

A. No, sir. He was in the store paying for the gas and getting me a pack of cigarettes.

Q. And who took possession of the money?

A. I did.

Q. And what did you do with the money?

A. I had—I had—really, I had owed [defendant] $100, and I had $20 of it on me, which I gave him that as soon as I got in the car. So I told him I was going to pay him the rest of the money when I get it, and which, when I got it, I finished paying him.

....

Q. Did, at any time, [defendant] have any cocaine in his possession?

A. No, sir. I didn't see any. I had it.

Smith also testified that he had been the driver of the car during the drug sale and that because he did not want to get caught driving without a license, he and defendant had changed seats shortly after leaving the gas station.

On cross examination the prosecutor confronted Smith with the handwritten statement he had signed shortly after being arrested, and Smith admitted having made it. His statement contained the following narrative:

[Defendant] said he needed to go to Liberty for a minute because he needed to stop by there for some money and gas. As we pulled in the gas station, we went on the side of the store to meet somebody. So [defendant] said, “Get the dope, Chris. It's on the door panel.” So he did, and Chris gave him [defendant] the $80.

(Quotation marks omitted.) During the State's rebuttal the trial court admitted the statement into evidence, and it was published to the jury. The State also reexamined Sergeant Dallas Autry, who testified that Smith, following his arrest, “admitted that ... [defendant] was the one that passed the dope to the door panel and that [defendant] received the money from ... Gendreau.”

On appeal to the Court of Appeals, defendant argued that the trial court committed plain error by admitting into evidence Agent Byrd's testimony that the substance sold to Gendreau was “crack cocaine.” Defendant also argued that the trial court erred in denying his motion to dismiss for insufficiency of the evidence, contending that “there was no properly admitted evidence which proved the existence of a controlled substance or that [defendant] was ever in possession or control of any item which purported to be a controlled substance.”

A unanimous panel of the Court of Appeals agreed. State v. Nabors, ––– N.C.App. ––––, ––––, 700 S.E.2d 153, 159 (2010). Relying on this Court's opinion in State v. Ward, 364 N.C. 133, 142, 147, 694 S.E.2d 738, 744, 747 (2010), the court below concluded that in the absence of expert testimony as to the chemical analysis of the substance, the evidence was insufficient to prove an essential element of the crime, namely, that the substance was a controlled substance. Nabors, ––– N.C.App. at ––––, 700 S.E.2d at 159. In Ward this Court noted that the legislature had provided both procedures for the admissibility of laboratory reports and a technical definition of cocaine, and we stated, “[I]f it was intended by the General Assembly that an officer could make a visual identification of a controlled substance, then such provisions in the statutes would be unnecessary.' ” 364 N.C. at 142, 694 S.E.2d at 744 (quoting State v. Llamas–Hernandez, 189 N.C.App. 640, 653, 659 S.E.2d 79, 87 (2008) (Steelman, J., dissenting), rev'd per curiam for reasons stated in dissent, 363 N.C. 8, 673 S.E.2d 658 (2009)). The Court of Appeals reasoned that Byrd's and Gendreau's previous exposure to cocaine and their observation of the substance involved in this transaction did not equate to the “scientifically valid chemical analysis” necessary “to establish the identity of the controlled substance beyond a reasonable doubt.” Nabors, ––– N.C.App. at ––––, 700 S.E.2d at 159 (brackets omitted) (quoting Ward, 364 N.C. at 147, 694 S.E.2d at 747) (internal quotation marks omitted). Given the State's lack of scientific proof, the Court of Appeals concluded “there was insufficient evidence that the substance that formed the basis of the controlled substance charges in this case was cocaine.” Id. at ––––, 700 S.E.2d at 158–59. The Court of Appeals reversed the trial court's denial of defendant's motion to dismiss and vacated defendant's convictions. Id. at ––––, 700 S.E.2d at 159. This Court allowed the State's petition for discretionary review of the Court of Appeals' decision.

Before this Court the State argues that the Court of Appeals erred in vacating defendant's convictions and dismissing the charges by (i) failing to address whether the trial court committed plain error in admitting the lay opinion testimony that the substance was crack cocaine and (ii) misapplying the standard for determining the sufficiency of the evidence to withstand a motion to dismiss. The State asserts that the Court of Appeals conflated defendant's sufficiency claim with his claim concerning admissibility of lay opinion testimony. The State further argues that even if admission of the lay testimony identifying the substance as a controlled...