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Using Other Bad Acts to Prove Malice in a Vehicular Homicide Case

Monday, November 16th, 2009

by School of Government faculty member Shea Denning

Among the most recent batch of opinions issued by the Court of Appeals was State v. Tellez, in which the court upheld the defendant’s conviction of two counts of second-degree murder and one count of felonious hit and run arising from a fatal car crash. Here are the facts: Defendant went to a party in Coats, NC around 1 p.m. on March 4, 2007, where he drank three beers. Three hours later, defendant and his friends, Castro and Childers, left the party in Castro’s car. Defendant drove and, while he was driving, began to drink a fourth beer. As defendant approached an intersection with a state highway, he slowed, but did not stop. Indeed, defendant drove around a car that had stopped at the intersection and drove straight into the path of a truck driven by Dwayne Braswell and in which Braswell’s nine-year-old son, Jerry, was a passenger. After the collision, the truck rolled several times and caught on fire. Paramedics were unable to help Mr. Braswell or his son because of the fire. Their bodies burned beyond recognition. Defendant ran from the scene. Childers told the trooper who arrived on the scene that the defendant “was drunk and ran, got scared.” But Childers testified at trial that she did not know whether Tellez “was intoxicated” and “didn’t think he was.”

Tellez argued on appeal that the trial court erred in denying his motion to dismiss the second-degree murder charge because there was no evidence that he was driving while impaired. The court rejected this contention. Noting that second-degree murder is an unlawful killing with malice but without premeditation and deliberation, the court explained that there must be an intentional act sufficient to show malice. To prove malice in operating a motor vehicle, the State must prove that the defendant intended to drive in a reckless manner that reflected knowledge that injury or death would likely result, thus evidencing depravity of mind. Conduct other than impaired driving can arise to this level of recklessness.

The Tellez court concluded that the evidence of defendant’s (1) reckless driving, (2) consumption of alcohol before and during driving, (3) prior convictions for impaired driving and driving while license revoked, and (4) flight and elusive behavior after the collision constituted substantial evidence of malice based upon depravity of mind.

That the defendant’s reckless driving and his consumption of alcohol would be considered evidence of driving in such a way that reflects knowledge that injury or death would likely result-in other words, malice-seems rather obvious. This post is focused on the latter two categories of evidence, the defendant’s prior convictions and his post-crash conduct.

North Carolina’s appellate courts have consistently held that a defendant’s prior driving convictions are admissible to pursuant to Rule 404(b) to show malice in a second-degree murder prosecution based on the defendant’s driving. See, e.g., State v. Maready, 362 N.C. 614 (2008); State v. Goodman, 147 N.C. App. 57 (2002) (Greene, J., dissenting), rev’d, 357 N.C. 43 (2003) (per curium, adopting dissenting opinion); State v. Rich, 351 N.C. 386 (2000).

As most readers know, Rule 404(b) of the NC Rules of Evidence provides that evidence of other crimes, wrongs and acts by a defendant may not be admitted to prove that the defendant acted in conformity with that bad character in committing the instant offense. In other words, a prior impaired driving conviction may not be considered by the jury as evidence that, since the defendant previously drove while impaired, he did so on this occasion as well. Despite its provisions excluding the introduction of relevant evidence of other crimes, wrongs or acts by a defendant, Rule 404(b) otherwise is a rule of inclusion. Evidence of other bad acts and crimes, if relevant, may be introduced for other purposes, including establishing the defendant’s state of mind.

While 404(b) evidence must bear similarity and temporal proximity to the instant offense, courts generally have viewed a defendant’s entire record of traffic convictions to be relevant to whether the defendant exhibited malice by driving a manner that caused a fatal accident. In Tellez, the trial court admitted evidence that defendant had previously been convicted of driving while license revoked and impaired driving.

It is not entirely clear whether North Carolina’s appellate courts would sanction the admission of evidence of a prior impaired driving conviction as evidence of malice if the conduct giving rise to the murder charge did not involve driving after consuming alcohol or some other impairing substance. In State v. Lloyd, 187 N.C. App. 174 (2007), the defendant was charged with second-degree murder after he stole a van, fled from police, drove recklessly, and crashed into another car, killing both of its occupants. Lloyd was sober, but his driver’s license was revoked. The State introduced evidence of Lloyd’s prior refusal to submit to a breath test and his accompanying arrest and conviction of impaired driving. The trial court instructed the jury that this evidence “was received solely for the purpose of showing that the defendant had the knowledge that his license was suspended” on the date of the offense and, further, that driving with a suspended license suspension was evidence of malice. The court of appeals characterized the evidence that defendant drove knowing his license revoked as “fundamental” to proving malice and held that the danger of unfair prejudice was mitigated by the trial court’s limiting instruction. The appellate court failed to explain how driving with a revoked license evidences reckless-rather than simply unlawful-behavior.

Evidence of Tellez’s behavior after the collision likewise is admissible under Rule 404(b) as probative of his depravity of mind since post-offense conduct, like prior bad acts, can be relevant to establishing the defendant’s state of mind at the time of the offense. Cf. State v. Grice, 131 N.C. App. 48 (1998) (characterizing comments by trial court at sentencing that defendant’s “total lack of remorse” as evidenced by his failure to ask whether someone was hurt in the car he crashed into “implies . . . a lack of consciousness [and] total disregard for the laws of this State” as drawing a parallel between defendant’s lack of remorse and the malice necessary to support a second-degree murder conviction).

Tellez doesn’t change the landscape of the law applicable to murder prosecutions arising from vehicle crashes, though it does provide one more set of tragic facts held to establish malice. The last portion of the opinion explains that Childers’ statements to the trooper at the scene of the crash that Tellez “was drunk” were properly admitted into evidence, notwithstanding Childers’ testimony at trial that she did not think Tellez was intoxicated. I’ve waxed on too long already, so I won’t attempt to explain how the court concluded that these statements amounted to corroboration rather than inadmissible hearsay. (Plus, I can’t figure out what these statements corroborated.) Can any of our loyal readers explain this reasoning? Anyone? Anyone? Bueller?

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State v. Mobley: Green Light to the Use of Substitute Analysts

Wednesday, November 4th, 2009

by School of Government faculty member Jessie Smith

In previous posts [editor's note: her prior posts are here and here] I have written about the developing North Carolina law on the use of substitute analysts after Melendez-Diaz. In writing about State v. Locklear and State v. Galindo, both of which rejected substitute analyst testimony, I noted a common feature of those cases that might limit their holdings: in both cases, the experts appeared to merely be repeating opinions formed by non-testifying analysts. In light of this, I suggested that the door may still be open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. In State v. Mobley, decided November 3, 2009, the North Carolina Court of Appeals held that otherwise testimonial reports are admissible as the basis of a testifying expert’s opinion. Mobley thus allows the use of substitute analysts, in certain circumstances.

In Mobley, the defendant was convicted of rape and other charges. While the victim was being treated at the hospital, medical personnel collected a sexual assault kit, which was turned over to the police. Subsequent testing of the evidence matched the DNA profile of the perpetrator to the defendant’s DNA profile. The State also presented DNA evidence regarding another rape committed by the defendant, under Rule 404(b). On appeal, the defendant argued that his Confrontation Clause rights were violated when the trial court admitted testimony of a police crime laboratory analyst regarding DNA tests performed by other analysts.

The court of appeals began by noting that in Locklear, the testifying expert “was merely reporting the results of other experts. He did not testify to his own expert opinion based upon the tests performed by other experts, nor did he testify to any review of the conclusions of the underlying reports or of any independent comparison performed.” Slip Op. at p. 6. The court then distinguished the case before it, stating that the expert, Aby Moeykens, testified “not just to the results of other experts’ tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts’ tests, and her own expert opinion based on a comparison of the original data.” Slip Op. at pp. 6-7. It continued:

Well-settled . . . law allows an expert to testify to his or her own conclusions based on the testing of others in the field. This Court has held that evidence offered as the basis of an expert’s opinion is not being offered for the truth of the matter asserted. [Crawford] . . . noted that evidence offered for purposes other than proof of the matter asserted did not violate the Confrontation Clause. In Melendez-Diaz, the certificates at issue were being introduced not as the basis for any expert’s opinion but as prima facie evidence that the substance was cocaine. Thus, such evidence would implicate the Confrontation Clause. By contrast, in this case, the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under North Carolina case law.

Slip Op. at p.8 (citations omitted). Therefore, the court held, Ms. Moeykens’s testimony did not violate the Confrontation Clause. Slip Op. at. pp. 8-9.

It is worth noting that in Mobley, the defendant did not challenge the propriety of the methods used by the crime laboratory. Thus, the court concluded, Ms. Moeykens was “justified in relying on those procedures in her analysis.” Slip Op. at p. 7. This may suggest that in some circumstances such reliance would not be justified.

Additionally, the level of Ms. Moeykens independent review of the evidence clearly was significant to the court’s decision. Specifically, the court noted that she reviewed the original data and controls of the underlying reports from the buccal and vaginal swabs. Upon coming to the conclusion that each profile was generated properly, she undertook a technical review of the original analysts’ work, and based on that review and her comparison of numerical values at certain gene locations, formed an opinion as to the profile match. She undertook a similar level of review regarding the DNA reports relevant to the 404(b) evidence. Thus, it appears that there was substantial “raw data” upon which Ms. Moeykens formed her independent opinion. How much raw data must be available and what level of independent review must be done in other sorts of substitute analyst cases is an issue will be decided by later cases.

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Galindo and “Substitute Analysts” After Melendez-Diaz

Thursday, October 22nd, 2009

by School of Government faculty member Jessica Smith

On October 20, 2009, the North Carolina Court of Appeals decided State v. Galindo, holding that a Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst.

To put the decision in context, recall that last June, the U.S. Supreme Court decided Melendez-Diaz, holding that forensic laboratory reports-such as those identifying a substance as a controlled substance-are testimonial under the new Crawford confrontation clause rule. A more detailed analysis of that case is available here. In State v. Locklear, the North Carolina Supreme Court applied Melendez-Diaz and held that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. As explained in more detail here, in Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in forensic pathology. Butts testified that, according to an autopsy report prepared by a non-testifying forensic pathologist, the cause of the victim’s death was blunt force injuries. Butts also testified about a dental analysis performed by a second non-testifying examiner; Butts testified that by comparing dental records and skeletal remains, that examiner had identified the body as that of the victim. The N.C. Supreme Court found that a Crawford violation had occurred because the reports at issue were testimonial. However, the opinion left some ambiguity about whether a distinction could be drawn between an expert who simply serves as a “mouthpiece” for a non-testifying analyst (arguably what happened in Locklear) and an expert who testifies to an independent opinion based on facts or data reasonably relied upon by experts in the field. In the first situation, the expert’s participation does not change the Crawford analysis: the underlying report is testimonial whether it is introduced in paper form or read into evidence by the testifying expert. In the second situation, it can be argued that the underlying report is no longer testimonial (and thus excluded from Crawford) because it is not being introduced for the truth of the matter asserted but rather as a basis of testifying expert’s opinion, who can be cross-examined at trial.

Galindo, the latest North Carolina case on point, involved the following fact pattern. Evidence was seized from a crime scene and submitted to a police crime laboratory, where an analyst identified the substance as cocaine and determined its weight. When the case was tried, the analyst was working in South Carolina and was not subpoenaed to testify. Instead, the State offered Michael Aldridge, a chemist who had supervised the laboratory for twenty years. Aldridge testified “that in his opinion - based ’solely’ on the lab report” prepared by the non-testifying analyst, the substance at issue was cocaine and weighed approximately 1,031.83 grams. On appeal, the defendant challenged only that portion of Aldridge’s testimony in which he opined as to weight of the cocaine. Citing Melendez-Diaz and Locklear, the court concluded that “Aldridge’s expert testimony based ’solely’ on the absent analyst’s lab report” was testimonial. It further concluded that the evidence was inadmissible under Crawford because the State had not established unavailability and a prior opportunity to cross-examine, but that the trial judge’s error in admitting the evidence was harmless beyond a reasonable doubt.

One reading of Galindo is that it rejects the use of substitute analysts who form opinions based on testimonial reports by non-testifying analysts. This reading finds support in the text of the decision, which as noted above, holds that Aldridge’s testimony based solely on the underlying report is testimonial. However, in Galindo, as in Locklear, Aldridge appears to have simply served as a “mouthpiece” for the non-testifying analyst. Although Aldridge testified to an opinion based on the underlying report whereas Butts appears to have simply read the non-testifying analyst’s conclusions into evidence, this might be a distinction without a difference. Recall that Aldridge gave an opinion as to weight of the cocaine. As I understand it, weight of a controlled substance is determined by putting the substance on a scale and recording its weight. If the testifying expert did not do the weighing, what basis is there for the opinion other than a notation on weight made by the non-testifying analyst? If there is no other basis, Aldridge’s testimony arguably was no different from Butt’s testimony in Locklear: repetition of an opinion formed by a non-testifying analyst. Such an opinion is inadmissible. First, testimonial evidence cannot be transformed into non-testimonial evidence simply by having a State expert articulate the empty words, “In my opinion.” Second, as an evidentiary matter, the opinion may be problematic in that it is not based on adequate facts or data. See e.g., State v. Rogers, 323 N.C. 658 (1989). Under this view, admission of Aldridge’s opinion was error but the door is still open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. Of course, North Carolina recently adopted new and revised notice and demand statutes. As discussed here, these procedures may make this issue a moot one in some circumstances. However, when the defendant declines to waive his or her confrontation clause rights, the issue will arise again and thus we are sure to hear more on it from our appellate courts.

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The “Explains Conduct” Non-Hearsay Purpose

Tuesday, October 13th, 2009

Most readers of this blog know that hearsay evidence, meaning an out-of-court statement “offered in evidence to prove the truth of the matter asserted,” N.C. R. Evid. 801(c), is presumptively inadmissible. Sometimes the proponent of hearsay evidence can introduce the evidence under one of the exceptions in Rules 803 and 804. But equally often, the proponent of what appears to be hearsay evidence will attempt to introduce it for a non-hearsay purpose, i.e., for a purpose other than to establish the truth of the matter asserted.

Here’s an example. Dan Defendant is charged with PWISD cocaine. Ollie Officer is on the stand, and Pat Prosecutor asks, “how did Dan first come to your attention?” Ollie begins to say that Winnie Witness, who lived near Dan, contacted Ollie and told him that Dan was selling drugs. Dan’s lawyer objects on hearsay grounds, and Pat responds that he’s not trying to introduce Winnie’s testimony to prove that Dan sold drugs, but rather, to explain why Ollie began to investigate Dan. In other words, Pat argues, Winnie’s statements are admissible for the non-hearsay purpose of explaining Ollie’s conduct.

Jane Judge should probably admit the evidence. An array of North Carolina cases support this conclusion, including State v. Coffey, 326 N.C. 268 (1990), State v. Irick, 291 N.C. 480 (1977), and In re Mashburn, 162 N.C. App. 386 (2004) (testimony of DSS employee regarding child’s claims of sexual abuse did “not constitute inadmissible hearsay because it explained why . . . DSS commenced an investigation”). See generally 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence 102 n. 47 (6th ed. 2004) (collecting cases). Nor is there a Confrontation Clause problem, because statements not offered for the truth of the matter asserted fall outside the scope of the Clause. State v. Leyva, 181 N.C. App. 491 (2007).

The “explains conduct” non-hearsay purpose is subject to abuse, however. Almost any statement can be said to explain some sort of conduct. Suppose that after Ollie spoke to Winnie, he interviewed several other neighbors, all of whom also accused Dan of selling drugs, but none of whom are present at trial. Can Ollie testify about those interviews, too, because they explain his conduct in obtaining a search warrant for Dan’s house?

Although State v. Holden, 321 N.C. 125 (1987), suggests that the answer to the foregoing question may be yes, that would be a troubling response because it would allow parties easily to circumvent the hearsay rule. One leading commentator has argued that officers “should be entitled to provide some explanation for their presence and conduct” in investigating a crime, but “should not . . . be allowed to relate historical aspects of the case, such as complaints and reports of others containing inadmissible hearsay. Such statements are sometimes erroneously admitted under the argument that the officers are entitled to give the information upon which they acted. The need for this evidence is slight, and the likelihood of misuse great. Instead, a statement that an officer acted ‘upon information received,’ or words to that effect, should be sufficient.” 2 Kenneth S. Broun, et al., McCormick on Evidence 103 (5th ed.1999). Although the quoted material concerns testimony by officers, testimony by defense witnesses, including defense investigators, may raise similar issues.

The federal courts that have considered the reach of the “explains conduct” non-hearsay purpose have likewise expressed concern about the potential for abuse. See, e.g., United States v. Maher, 454 F.3d 13 (1st Cir. 2006) (rejecting the government’s argument that informants’ statements to officers were admissible to explain the officers’ conduct as “impossibly overbroad” and “warning prosecutors [about] backdoor attempts to get statements by non-testifying [witnesses] before a jury”); United States v. Silva, 380 F.3d 1018 (7th Cir.2004) (rejecting a similar argument as “eviscerat[ing] the constitutional right to confront and cross-examine one’s accusers”).

North Carolina’s appellate courts have yet to establish a clear outer limit to the use of the “explains conduct” rationale. However, it is settled that the proponent of evidence admitted for that purpose may not later argue the truth of the statement to the jury. State v. Canady, 355 N.C. 242 (2002). And presumably a limiting instruction is appropriate when evidence is admitted for a non-hearsay purpose. But judges and lawyers on both sides should also remain alert to attempts to circumvent the hearsay rules by introducing critical evidence under the guise of explaining conduct.

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Evidentiary Issues in Sex Crimes Cases

Friday, September 11th, 2009

I recently completed an Administration of Justice Bulletin on evidentiary issues in sex crimes cases. It’s available for free here. It covers the application of N.C. R. Evid. 412, i.e., the rape shield rule, as well as the application of N.C. Rule Ev. 404(b) as it relates to evidence of prior sexual misconduct by the defendant. I hope it’s helpful. If folks have comments, questions, or suggestions about it, please let me know, since I intend to revise it periodically to keep it current.

In other news, each year, the ABA Journal compiles a list of the 100 best law blogs, which they call “blawgs.” If you happen to know of any blogs you’d like to nominate, you can do so here.

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Melendez-Diaz “Fix”

Wednesday, September 9th, 2009

Melendez-Diaz v. Massachussetts, as most readers of this blog know, is the United States Supreme Court’s latest pronouncement on the Confrontation Clause. Generally, it holds that forensic laboratory reports — like chemical analyses of drugs, DNA tests, and so on — are “testimonial” for Confrontation Clause purposes. That means a laboratory report generally may not be admitted unless the analyst who prepared the report testifies. (A prior post with the basics about the case is here, though several other posts have addressed different aspects of the decision.)

Most readers of this blog may not know that the General Assembly passed a “fix” for Melendez-Diaz this session — legislation that clarifies and standardizes the various stautes that provide for the admissibility of forensic laboratory reports without the presence of the analyst when a defendant has advance notice of the report and fails to object to its admission — thereby waiving his or her Confrontation Clause rights. Unlike some legislative responses to court decisions, this one isn’t intended as a de facto overruling of Melendez-Diaz — the General Assembly lacks the power to do that  — but it should reduce the uncertainty about how Melendez-Diaz applies in North Carolina.

Fortunately, you don’t need to slog through the Session Law to understand the “fix” — you can read Jessie Smith’s concise summary of it, here. But do it before October 1, because that’s when it comes into effect.

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State v. Locklear and the Admissibility of Forensic Reports

Tuesday, September 1st, 2009

by School of Government faculty member Jessica Smith

Last Friday, the North Carolina Supreme Court decided State v. Locklear, holding, in part, that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. Because the case raises questions about the viability of offering a “substitute analyst” to avoid a Crawford problem, I offer this post.

In Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in the field of forensic pathology. Butts testified to a 1997 autopsy report on a victim, prepared by Karen Chancellor, a forensic pathologist. Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim's] death was blunt force injuries to the chest and head.” Slip Op. at 18. Butts also testified “to the results of dental analysis performed by Dr. Jeffrey Burkes,” id. at 18-19, included in the autopsy report. Butts stated “that, by comparing [the victim's] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Id. at 19. Neither Chancellor nor Burkes testified at trial. On appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt.

What is unclear about Locklear-at least from the court’s decision-is whether Butts testified to an opinion on cause of death and identity based on facts or data contained in the reports or whether he simply read the reports into evidence. This is an important distinction. If the latter is true-that he simply read the reports into evidence-Locklear was a slam dunk for the defense. As I stated in an earlier paper on the implications of Melendez-Diaz, available here, in such a scenario, the report is being received as substantive evidence; since it is clearly testimonial under Melendez-Diaz, it may not be admitted unless the preparer testifies or if the State can establish unavailability and a prior opportunity to cross-examine. A close look at the court’s opinion suggests that this, in fact, is what happened. The opinion states that Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim's] death was blunt force injuries to the chest and head.” He also testified “to the results of dental analysis performed by [Burkes]” that “by comparing [the victim's] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Thus, it appears that Butts did not testify to an independent opinion on either point, but rather simply recounted opinions formed by the non-testifying experts.

If Butts had testified to his own opinion as to cause of death and identity, based on materials reasonably relied upon by experts in the field of forensic pathology, the case could have come out differently. As noted in the paper cited above, pre-Melendez-Diaz cases in North Carolina and in the vast majority of jurisdictions held that in this context the underlying report is not being admitted for the truth of the matter asserted. Rather, it is admitted as a basis of the testifying expert’s opinion. The courts reasoned that since the evidence is not hearsay, it is not covered by the Crawford rule. After all, Crawford itself recognized that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9. Furthermore, the expert is on the stand and may be cross-examined about the basis of his or her opinion. Of course, Melendez-Diaz does not address this issue. In light of that, it would seem somewhat surprising for the North Carolina Supreme Court to overrule the pre-Melendez-Diaz law on point in a mere two paragraphs of analysis, without mentioning the issue.

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Visual Identification of Drugs (Again)

Thursday, August 20th, 2009

The longest opinion issued by the court of appeals this week was Judge Ervin’s 45-page treatise in State v. Ward, __ N.C. App. __ (2009). Although the opinion contains other important material, I want to focus on the court’s holding that the method used by an SBI agent to identify certain prescription drugs was “not consistent with the general thrust of existing precedent concerning how controlled substances should be identified in criminal trials and . . . [was] not sufficiently reliable.”

The defendant in Ward sold what appeared to be prescription drugs to a police informant. A subsequent search of the defendant, his car, and his house turned up enough additional drugs to stock a pharmacy. He was charged with, and convicted of, a variety of drug offenses. Part of the state’s evidence at trial was the testimony of an SBI agent who testified as an expert in the fields of chemical analysis of drugs and forensic chemistry. He testified that “that he performed a chemical analysis or visual examination of the evidence seized from Defendant . . . [and that] these substances included Cocaine, Dihydrocodeinone (an opium derivative), Hydrocodone (an opium derivative), Oxycodone (an opium derivative), [and various other controlled substances].” He indicated that he identified some of the drugs based upon a chemical analysis, but that he “identified certain other substances on the basis of a visual examination of the size, shape, color of and markings on the tablets in question.” Specifically, the agent compared the appearance of the pills, including their pharmaceutical markings, to a reference work called Micromedics Literature, which he testified is “used by the doctors in hospitals and pharmacies to identify prescription medicine[s].”

On appeal, the defendant argued that the trial court erred in allowing this testimony, claiming that the method used by the agent to identify the drugs was not sufficiently reliable to satisfy the requirements of Rule 702 and State v. Goode, 341 N.C. 513 (1995). The court of appeals agreed. First, it addressed State v. Fletcher, 92 N.C. App. 50 (1988) (allowing a police officer to testify as an expert and to identify marijuana based on its appearance), discounting it as a pre-Goode case that was not focused on the reliability of the testimony at issue. The court then noted without comment that Fletcher was applied (post-Goode) to crack cocaine in State v. Freeman, 185 N.C. App. 408 (2007) (allowing a police officer to give his lay opinion that a particular substance was crack cocaine), before focussing on State v. Llamas-Hernandez, 363 N.C. 8 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640 (2008), a case discussed at length in this prior blog post.

Llamas-Hernandez held that two police officers should not have been allowed to give lay opinion testimony to the effect that a white powder seized during an investigation was cocaine. The court noted that powder cocaine does not possess unique visual characteristics; that the General Assembly adopted “a technical, scientific definition of cocaine,” suggesting the need for scientific testimony to identify it; and that the General Assembly provided a statutory procedure for the admission of lab reports regarding controlled substances, perhaps suggesting that laboratory analysis is required. Because Llamas-Hernandez did not overrule Freeman and Fletcher, the scope of the ruling was somewhat unclear: was it limited to powder cocaine, or did its reasoning sweep more broadly?

Ward applied Llamas-Hernandez to prescription drugs, stating that “existing precedent suggests that controlled substances defined in terms of their chemical composition can only be identified through the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.” It also noted that the agent had received no special training in identifying prescription drugs, and that there was little reason to believe that the agent could reliably distinguish between genuine and counterfeit prescription drugs, which the court, based on World Health Organization data, believed to be widespread. Thus, it concluded that the agent’s testimony was insufficiently reliable to be admissible.

A few minutes’ worth of research suggests that most other jurisdictions have come out on the other side of this issue. See, e.g., State v. Clark, 198 P.3d 809 (Mont. 2008) (allowing pharmacist to testify to the identity of prescription medications “by comparing the unique imprint code on each pill, along with the color, make, and shape of the pills, with two national peer-reviewed computer databases”); State v. Carter, 981 So.2d 734 (La. Ct. App. 2008) (finding sufficient evidence to support a conviction where “an expert in forensic chemistry . . . testified that the green pills found by police contained hydrocodone. The pills were identified via visual inspection and comparison with pictures in a book.”); State v. Ohlin, 2007 WL 4106274 (Minn. Ct. App. Nov. 20, 2007) (unpublished) (”[A] forensic scientist . . . inspected the pills and identified them from their markings as containing a controlled substance. There is nothing in the record to contradict this expert testimony or to support a plausible inference that the pills contained anything different from what their markings showed. Nor has [the defendant] shown why it would be improper for an expert witness to rely on pill markings, in lieu of testing, to determine the presence of a controlled substance in a pill found in a prescription bottle and not packaged for sale.”). Of course, that doesn’t show that Ward was wrongly decided, but it does suggest that this area remains controversial. Perhaps the state supreme court will weigh in and clarify the reach of Llamas-Hernandez. Stay tuned for further developments.

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News Roundup

Tuesday, August 11th, 2009

There has been an endless parade of relevant news over the past week or so.

First, Justice Sonia Sotomayor was confirmed by the Senate and sworn in. This New York Times story about her confirmation gives you the basics if you’ve been living under a rock.

Second, I’ve just come back from a week of vacation in Canada. The locals were complaining about the brutal temperatures, which regularly pushed into the — gasp! — high 70s. Anyhow, reading the Toronto papers was an eye-opener, especially this article about an infamous white-collar criminal who fleeced innocent investors through a multi-million dollar accounting fraud. Sound like someone else who’s been in the news recently? Well, in Canada, such shenanigans will earn you a hefty sentence of . . . seven years. But you don’t start serving it until after your appeals are exhausted. And because of generous parole rules, you may be released in 14 months. And you may serve your time at a prison with an “executive golf course.” Sounds pretty brutal.

Third, a number of interesting items have cropped up in connection with sex offenders, including two articles (here and here) from The Economist, generally arguing that America’s sex offender registration regimes are too extensive, and a remarkable comment by a federal circuit court about a long sentence for a first offender in a child pornography case. A few tidbits on the lighter side of a serious subject include this story about an iPhone app for tracking sex offenders and, perhaps my favorite, this story about a man who claimed that his cat downloaded child pornography behind his back.

Fourth, another cluster of stories has come out, this one about prisons. There was a massive race riot at a California prison, which some have suggested may be due to a Supreme Court decision rejecting California’s previous practice of racial segregation in prison, and others have suggested may be connected to the state’s prison overcrowding. But no matter how bad the situation in California may be, it pales in comparison to the situation in Mexico, where complete corruption is the rule. The New York Times reports that “[w]hen life inside, with its pizza deliveries, prostitutes and binges on drugs and alcohol, becomes too confining, prisoners sometimes pay off the guards for a furlough or an outright jailbreak.”

Finally, the General Assembly is supposed to be winding down, but it is still cranking out bills, from the Racial Justice Act, which allows statistical evidence of racial discrimination to be introduced in capital cases (and which Governor Perdue reportedly will sign today), to a bill prohibiting “cyberbullying,” to bills that change the structured sentencing grid to the net modest benefit of defendants. I’ll try to do a more systematic analysis of the legislative session once it is complete.

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Retroactivity of Melendez-Diaz (Again)

Monday, July 27th, 2009

by School of Government faculty member Jessica Smith

In my last post on this topic, I addressed the “new rule” prong of Teague retroactivity analysis as it applies to Melendez-Diaz. I ended that post by noting that another aspect of retroactivity analysis that has been raised regarding Melendez-Diaz is whether the Teague test applies in North Carolina motion for appropriate relief proceedings in light of Danforth v. Minnesota, 128 S. Ct. 1029 (2008). This post addresses that issue.

As noted in my last post, the Teague anti-retroactivity rule provides that new judge-made rules of criminal procedure are not retroactive unless they are determined to be watershed rules. While the Teague rule governs federal habeas proceedings, Danforth held that Teague does not limit the authority of state courts to give broader effect to new federal rules of criminal procedure in their own post-conviction proceedings than is required by that opinion. Relying on Danforth, some defense lawyers have argued that North Carolina judges now are free to disregard Teague and apply a more permissive retroactivity standard to new federal rules of criminal procedure-such as Crawford and Melendez-Diaz-in state court motion for appropriate relief proceedings.

One problem with that argument is State v. Zuniga, 336 N.C. 508 (1994). In that case, the North Carolina Supreme Court expressly adopted the Teague test for determining whether new federal rules apply retroactively in state court motion for appropriate relief proceedings. In so ruling it specifically rejected an argument by amici, the North Carolina Academy of Trial Lawyers, that the state retroactivity rule of State v. Rivens, 299 N.C. 385 (1980) (new state rules are presumed to operate retroactively unless there is a compelling reason to make them prospective only) should apply in motion for appropriate relief proceedings. Instead, persuaded by concerns of finality, the court adopted the Teague rule. Although Zuniga is a pre-Danforth case, it is the law in North Carolina. And although the North Carolina Supreme Court might come to a different conclusion if the issue is raised again, the lower courts are bound by that decision. It might be worth noting that the United States Supreme Court came to a different conclusion than the Zuniga court with regard to application of the Teague test to the new federal rule at issue, see Beard v. Banks, 542 U.S. 406 (2004) (Zuniga held that the McKoy rule applied retroactively under Teague; ten years later in Beard, the United States Supreme Court concluded otherwise). However, even if that aspect of Zuniga is no longer good law, Danforth reaffirms the authority of the Zuniga court to adopt the Teague test for purposes of state post-conviction proceedings.

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