Embed Size (px)
Citation preview
NO. COA12-861 ELEVENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA, ))
v. ) From Harnett)
THOMAS EDWARD ELLIS, III, )Defendant )
* * * * * * * * * * * * * * * * *
DEFENDANT-APPELLANT’S BRIEF
* * * * * * * * * * * * * * * * *
- i -
INDEX
TABLE OF CASES AND AUTHORITIES............................................................III
ISSUES PRESENTED……………………………………………………………..1
STATEMENT OF THE CASE.................................................................................2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.......................3
STATEMENT OF THE FACTS...............................................................................3
STANDARD OF REVIEW.....................................................................................15
ARGUMENT..........................................................................................................16
I. MR. ELLIS DID NOT WAIVE HIS OBJECTION BECAUSE KOZIK’S TESTIMONY WAS NOT THE SUBJECT OF THE MOTION IN LIMINE AND SBI LAB TEST RESULTS ARE NOT THE SAME EVIDENCE AS LAY VISUAL INSPECTION...........................................................................17
II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY RELYING ON KOZIK’S VISUAL IDENTIFICATION OF THE LOOSE PLANT MATERIAL BECAUSE OUR SUPREME COURT DID NOT MAKE AN EXCEPTION FOR MARIJUANA IN STATE V. WARD......................................19
III. EVEN IF VISUAL IDENTIFICATION COULD IDENTIFY MARIJUANA BEYOND A REASONABLE DOUBT, THE TRIAL COURT PLAINLY ERRED BY RELYING ON KOZIK’S TESTIMONY BECAUSE HE LACKED THE NECESSARY TRAINING AND EXPERIENCE....................24
IV. ASSUMING THAT MR. ELLIS WAIVED HIS OBJECTION, THE TRIAL COURT PLAINLY ERRED BY ADMITTING THE RESULTS OF THE SBI LAB TEST BECAUSE THE STATE FAILED TO DEMONSTRATE IT POSSESSED SUFFICIENT INDICIA OF RELIABILITY...........................29
V. MR. ELLIS IS ENTITLED TO HAVE THE JUDGMENT AGAINST HIM VACATED BECAUSE THE STATE
- ii -
FAILED TO PRESENT ANY COMPETENT EVIDENCE THAT THE LOOSE PLANT MATERIAL WAS MARIJUANA...........................................................................33
CONCLUSION.......................................................................................................33
CERTIFICATE OF WORD COUNT.....................................................................34
CERTIFICATE OF SERVICE................................................................................35
APPENDIX.............................................................................................................36
- iii -
TABLE OF CASES AND AUTHORITIES
CASES
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)…………………………………………………..30
Howerton v. Arai Helmet, Ltd. , 358 N.C. 440, 597 S.E.2d 674 (2004)………27, 29
Lewis v. Rapp, --- N.C. App. ---, 725 S.E.2d 597 (2012)………………………...15
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)………………………………………………………………….31
Moore v. United States, 374 A.2d 299 (D.C. 1977)………………………………32
People v. Park, 380 N.E.2d 795 (Ill. 1978)……………………………….20, 21, 28
Phillips v. Triangle Women's Health Clinic, Inc., 155 N.C. App. 372, 573 S.E.2d 600 (2002), aff'd per curiam, 357 N.C. 576, 597 S.E.2d 669 (2003)………15
State v. Alford, 339 N.C. 562, 453 S.E.2d 512 (1995)……………………………18
State v. Bailey, 2011 N.C. App. LEXIS 1414 (N.C. Ct. App. July 5, 2011) (unpublished)…………………………………………………………...23, 24
State v. Carr, 145 N.C. App. 335, 549 S.E.2d 897 (2001)……………………17, 18
State v. Carter, 848 P.2d 599 (Or. 1993)………………………………………….21
State v. Clark, 30 N.C. App. 253, 226 S.E.2d 398 (1976)………………………..25
State v. Collins, 345 N.C. 170, 478 S.E.2d 191 (1996)…………………………...27
State v. Coria, 131 N.C. App. 449, 508 S.E.2d 1 (1998)……………………...23, 24
State v. Cox, --- N.C. App. ---, --- S.E.2d ---, 2012 N.C. App. LEXIS 959 (2012)…………………………..……22, 23, 24
- iv -
State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988)………………11-12, 22
State v. Foster, --- N.C. App. ---, 729 S.E.2d 116 (2012)………………………..27
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, reconsideration denied, 362 N.C. 178, 657 S.E.2d 666 (2008)…………………………………….15
State v. Garnett, --- N.C. App. ---, 706 S.E.2d 280, disc. rev. denied, 365 N.C. 200, 710 S.E.2d 31 (2011)…………………………..11, 22, 23, 24
State v. Harris, 2002 N.C. App. LEXIS 1712 (N.C. Ct. App. Feb. 19, 2002) (unpublished)……………………………………………………………….4
State v. James, --- N.C. App. ---, 715 S.E.2d 884 (2011)……………………16, 17
State v. Jones, --- N.C. App. ---, 718 S.E.2d 415 (2011)………………………...23
State v. Nabors, 365 N.C. 306, 718 S.E.2d 623, 627 (2011)………………5, 25, 27
State v. Nabors, 207 N.C. App. 463, 700 S.E.2d 153 (2010)………………5, 25, 26
State v. Neal, 196 N.C. App. 100, 674 S.E.2d 713 (2009)……………………16, 33
State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172, disc. rev. denied, 359 N.C. 640, 617 S.E.2d 286 (2005)………………………………….16, 33
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)………………………..15, 16
State v. Robinson, 346 N.C. 586, 488 S.E.2d 174 (1997)…………………….15, 16
State v. Seagull, 632 P.2d 44 (Wash. 1981)………………………………………21
State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980)…………………………...8, 28
State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231 (1999)………………..30
State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010)………………………..passim
- v -
State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), disc. rev. denied, 353 N.C. 396, 547 S.E.2d 427 (2001)……………………………………...15
State v. Williams, 362 N.C. 628, 669 S.E.2d 290 (2008)…………………………15
State v. Wind, 208 N.W.2d 357 (Wisc. 1973)…………………………………….28
United States v. Diaz, 2006 U.S. Dist. LEXIS 91068 (N.D. Cal. Dec. 6, 2006)…..9
United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982)………………………..16
United States v. Perez, 2012 U.S. Dist. LEXIS 8710 (W.D. La. Jan. 25, 2012)….32
Waltman v. Payne, 535 F.3d 342 (5th Cir. 2008)…………………………………21
STATUTES
N.C. Gen. Stat. § 7A-27…………………………………………………………….3
N.C. Gen. Stat. § 74E-6…………………………………………………………….4
N.C. Gen. Stat. § 90-94…………………………………………………………...19
N.C. Gen. Stat. § 90-95……………………………………………………….16, 33
N.C. Gen. Stat. § 15A-1414……………………………………………………….14
OTHER AUTHORITIES
Stewart J. Lawrence & John Kelly, A Miscarriage of Justice on Marijuana, The Guardian (Aug. 4, 2011), http://www.guardian.co.uk/commentisfree/cifamerica/2011/aug/04/marijuana-flawed-test .................................................................................................29
N.C. State Crime Laboratory, Drug Chemistry Technical Procedure Section Manual, Procedure A-02 (2006)……………………………………10, 30, 32
- vi -
M.J. de Faubert Maunder, Two Simple Colour Tests for Cannabis, 5 UNODC Bulletin on Narcotics 5, 37 (1969), available at http://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1969-01-01_4_page006.html#f001 ……………………………………………...29
Aaron Roussell, The Forensic Identification of Marijuana: Suspicion, Moral Danger, and the Creation of Non-Psychoactive THC, 22 Alb. L.J. Sci. & Tech. 103 (2012)……………………………………………………9, 22, 31
Fredrick Whitehurst, Why Do We Convict As Many Innocent People as We Do?: Forensic Analysis of Marijuana and the Kurzman Mystery: A Case Study of Flawed Logic in Determination of Guilt, 41 Tex. Tech L. Rev. 117 (2008)………………………………………………………………20, 22, 32
- 1 -
NO. COA12-861 ELEVENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA, ))
v. ) From Harnett)
THOMAS EDWARD ELLIS, III, )Defendant )
* * * * * * * * * * * * * * * * *
DEFENDANT-APPELLANT’S BRIEF
* * * * * * * * * * * * * * * **
ISSUES PRESENTED
I. WHETHER MR. ELLIS WAIVED HIS OBJECTION WHERE KOZIK’S TESTIMONY WAS NOT THE SUBJECT OF THE MOTION IN LIMINE AND BECAUSE SBI LAB TEST RESULTS ARE NOT THE SAME EVIDENCE AS LAY VISUAL INSPECTION?
II. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY RELYING ON KOZIK’S VISUAL IDENTIFICATION OF THE LOOSE PLANT MATERIAL BECAUSE OUR SUPREME COURT DID NOT MAKE AN EXCEPTION FOR MARIJUANA IN STATE V. WARD?
III. WHETHER, EVEN IF VISUAL IDENTIFICATION COULD IDENTIFY MARIJUANA BEYOND A REASONABLE DOUBT, THE TRIAL COURT PLAINLY ERRED BY RELYING ON KOZIK’S TESTIMONY BECAUSE HE LACKED THE NECESSARY TRAINING AND EXPERIENCE?
- 2 -
IV. WHETHER, ASSUMING THAT MR. ELLIS WAIVED HIS OBJECTION, THE TRIAL COURT PLAINLY ERRED BY ADMITTING THE RESULTS OF THE SBI LAB TEST BECAUSE THE STATE FAILED TO DEMONSTRATE IT POSSESSED SUFFICIENT INDICIA OF RELIABILITY?
V. WHETHER MR. ELLIS IS ENTITLED TO HAVE THE JUDGMENT AGAINST HIM VACATED BECAUSE THE STATE FAILED TO PRESENT ANY COMPETENT EVIDENCE THAT THE LOOSE PLANT MATERIAL WAS MARIJUANA?
STATEMENT OF THE CASE
The Defendant-Appellant, Thomas Edward Ellis, III, was indicted for one
count of possession with intent to sell or deliver marijuana, one count of selling
marijuana, and one count of delivering marijuana, all in violation of N.C. Gen.
Stat. § 90-96(a)(1), on 12 September 2011.
Mr. Ellis, by and through counsel, filed a motion to suppress a plastic bag of
loose plant material and the results of testing on that material on 16 April 2012.
On 24 April 2012, he also filed a motion in limine regarding testing on the
material.
The cause came on for trial at the 23 April 2012 Criminal Session of the
Harnett County Superior Court, before the Honorable Gregory A. Weeks, Judge
presiding. Judge Weeks heard arguments on Mr. Ellis’s motions on 24 and 25
April 2012 but held his ruling in abeyance.
The jury was empanelled following the pretrial motion hearing on 25 April
2012. After the close of evidence, Judge Weeks ruled that Mr. Ellis’s motions
- 3 -
were mooted by failure to object to unrelated testimony during trial. On 26 April
2012, the jury convicted Mr. Ellis of all three counts.
Judge Weeks arrested judgment on the count of delivery of marijuana and
entered judgment for the remaining counts that same day. Mr. Ellis received a
sentence of five to six months of imprisonment, suspended on condition of 18
months of supervised probation.
Following sentencing, Mr. Ellis gave notice of appeal in open court on 26
April 2012.
STATEMENT OF GROUNDS FOR APPELLATE REVIEWAppeal is as of right from the final judgment of Harnett County Superior
Court pursuant to N.C. Gen. Stat. § 7A-27(b).
STATEMENT OF THE FACTS
The State’s only eyewitness was a professional undercover informant, Elaine
Marcom, who was a long-time drug user with multiple convictions. (T pp 116-118)
Her job is to go out and get people to sell her drugs. (T p 116) “[I]f she comes
back with nothing, she doesn’t get paid.” (T pp 112, 116) Marcom is typically
paid $50, plus money to buy the drugs and other expenses. (T pp 95-96, 106)
Marcom first experimented with marijuana at age 16. (T p 117) Since then
she has continued to use drugs as an undercover informant. (T pp 117-118)
Despite admitting to drug use under oath, Marcom has never been convicted of a
- 4 -
drug offense. (T p 116) She has, however, been convicted of a variety of other
offenses. (T pp 116-117) Marcom claimed that all her convictions stemmed from
a single incident. (T pp 138-139) She did not explain how, if so, the convictions
were a year or more apart. (T pp 116-117, 138-139) It is also not clear whether
Marcom was able to “work off” additional changes. (T p 89)
Marcom started working as an informant for the Dunn Police Department
(DPD) in 2009 when she was stopped for speeding and couldn’t afford to pay the
ticket. (T p 115) She has worked for the DPD ever since. (T pp 106, 110, 115)
The sting operation on 21 July 2010 was part of a larger campaign. (T p 88, 118)
In fact, the operation at issue is not the only sting Marcom carried out that day. (T
p 140)
David Kozik organized the sting operation on 21 July 2010. Kozik had two
years of experience as a narcotics agent with the DPD. (T p 82) About half of his
experience prior to joining the DPD was as a company police officer with the
Crabtree Special Police Unit.1 (T p 84) Kozik had only received basic narcotics
investigation training. (T p 84) Kozik was assisted by Joe Byrd,2 another DPD
narcotics agent. (T p 91-93, 96) 1 Members of the Crabtree Special Police Unit are considered company police with limited powers of arrest. N.C. Gen. Stat. § 74E-6(b)(3), State v. Harris, 2002 N.C. App. LEXIS 1712 (N.C. Ct. App. Feb. 19, 2002) (unpublished). A person commissioned as a company police officer must take the same oath of office as a law enforcement officer, but only one person in a company police unit must be so commissioned. N.C. Gen. Stat. § 74E-6(a). 2 This Court found that Byrd lacked sufficient qualifications to visually identify controlled substances in State v. Nabors, 207 N.C. App. 463, 470, 700 S.E.2d 153, 158 (2010). Our Supreme Court reversed without addressing Byrd’s qualifications, holding that testimony from a defense witness identifying the suspected controlled substance was sufficient to witness a motion to dismiss. State v. Nabors, 365 N.C. 306, 718 S.E.2d 623, 627 (2011).
- 5 -
Marcom provided her own vehicle for the operation. (T p 92) She was
driving her father-in-law’s car on 21 July 2010. (T p 120) She claimed he did not
have a license at the time. (T p 120) Marcom has past convictions for
unauthorized use of a motor vehicle and driving without a license, among other
offenses. (T pp 116-117) Both Marcom’s person and the vehicle were searched for
drugs, a procedure she was very familiar with as a “veteran” undercover informant.
(T p 91-92, 112, 139) Despite her familiarity with the procedure and Kozik’s
relative lack of experience (T p 85), Marcom was not strip-searched. (T pp 139-
140) Marcom was equipped with hidden audio/video surveillance equipment in
her purse. (T pp 93, 121, 134)
The goal of the sting operation on 21 July 2010 was to go out and buy drugs
at a specific residence on South Layton Avenue (T pp 90, 118-119).
I went to this particular location on South Layton. I went up to the door and knocked. Gentleman approached. I asked him, can I get something, and he proceeded to ask me what. I said, twenty of, you know, hard. Crack cocaine or, you know. He is like, well, I've got some marijuana, but I need you to circle the block and come back. Okay. Fine. I went back to the vehicle, crunk [sic] it up, circled the block, come back. He approached the passenger side, handed it into me. You will see the video clear as day.
(T pp 121-122) Marcom returned approximately a half hour later with a bag of
loose plant material which she identified as marijuana. (T pp 97, 136)
After securing the loose plant material, Kozik retrieved the surveillance
equipment. (T p 97) Kozik had set up the equipment and it appeared to be working
- 6 -
properly. (T p 93) However, it failed to record significant portions of the sting
operation. The first 10 to 11 minutes of the recording are completely black
because Marcom placed the camera “down where it would not be . . . seeing a
bunch of trees.” (T p 134) The recording also failed to capture the actual exchange
because Marcom “was trying to position the camera” at the time. (T p 122)
Marcom explained:
Like I said, there was a little bit of conflict with the marijuana being handed . . .. So I cannot promise you it was placed into my hand, if it was just dropped into the seat, because it was very common, lots of times they just drop it in the seat, so I'm going to, for the record, say it was one or the other.
(T p 126) Neither Kozik nor any other member of a law enforcement agency was
present during the transaction. (T p 109)
Based on Marcom’s testimony, the recording was admitted for substantive
purposes as State’s Exhibit 1. (T pp 126-127, 186) There were technical difficulties
with the compact disc containing Exhibit 1. Another copy of the recording was
authenticated and admitted as Exhibit 1A. (T pp 131-133)
Kozik initially testified that he secured the loose plant material in an
evidence bag at the scene before retrieving the surveillance equipment (T p 97) He
later testified that he only secured the material in the evidence bag after it had been
weighted at the police station. (T p 100) It weighed 1.8 grams in the plastic bag
that Marcom gave it to him in. (T pp 100, 104) When Kozik received the loose
- 7 -
plant material, “[b]ased on the texture, how it appeared, and the odor, I
immediately suspected it to be marijuana.” (T p 103) He never performed any
tests other than observation. (T p 105)
Kozik’s training in marijuana identification consists of observing a known
sample twice. (T p 86) Kozik stated that marijuana has a distinctive appearance
and odor. (T pp 86-87) He described marijuana’s distinctive appearance as “[d]ark
green, vegetable-like material, often with stems and seeds kind of bunched
together.” (T p 87) “There is nothing else that looks like it that I have seen.” (T p
87) Kozik was unable to descriptive marijuana’s distinctive odor, “other than it
smells like marijuana.” (T p 87) Kozik was never tendered or admitted as an
expert in marijuana identification.
The loose plant material sat in the DPD evidence locker for 15 months (T p
105) before it was finally sent to the State Bureau of Investigation’s State Crime
Laboratory (“SBI crime lab”) “[t]o [be] examine[d] for type of controlled
substance, and to [determine] a specific weight.” (T pp 102-103) According to the
SBI lab report, which was admitted as State’s Exhibit 3, the loose plant material
was identified as “Marijuana – Schedule VI.” (R p 28) Also according to the lab
report, the loose plant material only weighted 1.5 grams. (R p 28) The
discrepancy between the weight of the loose plant material at the time it was seized
- 8 -
and when it was tested by the SBI was explained by the fact that the DPD weighted
it in the plastic bag while the SBI did not. (T pp 100, 104, 158-159)
A warrant charging Mr. Ellis with various marijuana offenses was not issued
until 2 May 2012, another six and a half months after the lab report. (T p 239; R p
2) On 24 April 2012, Mr. Ellis filed motion in limine to exclude the results of the
testing. (R p 21) The motion was based on the North Carolina Supreme Court’s
decision in State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980), upholding the trial
court’s finding that the Duquenois-Levine test used by the SBI was not
“scientifically accepted, reliable or accurate, and . . . was not specific for
marijuana.” (R p 21) It also asserted State v. Ward, 364 N.C. 133, 694 S.E.2d 738
(2010), as an alternative basis for exclusion. (R p 21)
At the motion hearing, the State presented testimony from Special Agent
Alicia Matkowsky, a technician at the SBI crime lab. (T p 45) Matkowsky stated
that she had analyzed over 2,000 cases but had only testified in five previously. (T
p 47) She could not estimate how many of those cases involved suspected
marijuana, but stated “at least hundreds.” (T p 48) Although she only had an
undergraduate degree in general forensic science, Matkowsky was admitted as an
expert in forensic chemistry without objection. (T pp 47-48) She was not tendered
as an expert in botany nor was there any testimony that she had received training in
that area. (T pp 47-48)
- 9 -
According to Matkowsky, the SBI process for testing suspected marijuana
involves “a microscopic and macroscopic examination of the plant material and
then also a modified[3] [Duquenois-Levine] with a color test.” (T p 48) This three-
step process is commonly referred to as the Nakamara/Thornton protocol.4 The
first step, macroscopic examination is an unaided visual examination looking for
general plant characteristics. (T p 49, 62) “Marijuana has characteristic leaves,
plants, the stems, the stalk, the stalk present. It has seeds.” (T p 62) The second
step, microscopic examination looks for hairs that are “more specific” to marijuana
than the general plant characteristics. (T pp 49, 62-63, 161) The third step, the
Duquenois-Levine test, involves:
[T]ak[ing] a portion of the plant material, . . . add[ing] the Duquenois-Levine [reagent], and it will turn a dark purplish-blue color, and if it has a cannabinoid in it, which includes marijuana, the chloroform . . . it will turn purple in that layer.
(T p 50) (A detailed description of the Nakamara/Thornton protocol elicited from
Matkowsky under questioning from the court appears in the appendix.)
As stated by the SBI Technical Procedure Manual section reproduced in the
appendix, the Duquenois-Levine color test is only preliminary test. (T pp 51, 54;
App p 7) The test relies on the technician’s visual observation of the reagent 3 The modification involved “incorporat[ion of] extraction of the color into chloroform” into the Duquenois-Levine testing process in 1962. United States v. Diaz, 2006 U.S. Dist. LEXIS 91068, 41 (N.D. Cal. Dec. 6, 2006). According to Matkowsky, “[t]here is no differentiation between the modified and the Duquenois. When we say Duquenois-Levine, we mean the modified.” (T p 55) For the sake of clarity, this brief will refer to the test simply as Duquenois-Levine.4 Aaron Roussell, The Forensic Identification of Marijuana: Suspicion, Moral Danger, and the Creation of Non-Psychoactive THC, 22 Alb. L.J. Sci. & Tech. 103, 111 (2012) (reproduced in appendix).
- 10 -
reaction and subjective determination of whether the color is indicative of the
presence of cannabinoids. (T p 50; App p 7) The SBI technical procedure for the
Duquenois-Levine test does not include an example of the “intense violet blue
color” which is indicative of cannabinoids. (App pp 7-9)
Matkowsky acknowledged that common substances, such as coffee, can
produce a false positive in the Duquenois-Levine test. (T p 57) Matkowsky also
acknowledged that there are other tests which are more accurate that Duquenois-
Levine, including “gas chromatography, mass spectrometry, or GC/MS.” GC/MS
shows whether Delta THC, the cannabinoid specific to marijuana, is present. (T p
58) Other tests that are more accurate than Duquenois-Levine include
microcrystalline and infrared tests. (T p 60) Confirmatory instrument tests could
have been performed on the loose plant material but were not. (T p 60)
In response to a direct question from the prosecutor, Matkowsky did not
testify that the Duquenois-Levine test had been peer reviewed for methodological
reliability. (T p 52) Instead, she testified that her results were “peer reviewed.” (T
pp 52-53) Matkowsky was also unable to testify as the error rate for either the
Duquenois-Levine test or the Nakamara/Thornton protocol.
Q . . . the Duquenois-Levine test. Are you familiar with what the percentage chances of that test could be wrong?
A I have no idea.
Q Are you familiar with the possibility of it being wrong?
- 11 -
A I wouldn't know.
Q Did you receive any training on whether the test can have any errors?
A We didn't have any statistical, like numbers that, you know, that they gave us during our training that said that it would test positive or negative.
Q So it would be fair to say then that it would be fair to present to this Court or say to the Court that you can't testify as to the unreliability or errors that may occur in the Duquenois-Levine test?
A By itself, I'm sure there is error there, but again, in conjunction with the micro and macroscopic examination, there wouldn't be.
Q And even in combination with those tests and the Duquenois-Levine test, you could not testify in court today what the percentage chance of error might be?
A I cannot give you a number, no.
(T p 59)
At the conclusion of Matkowsky’s testimony, the State cited State v.
Garnett, --- N.C. App. ---, 706 S.E.2d 280, disc. rev. denied, 365 N.C. 200, 710
S.E.2d 31 (2011), as “basically reiterat[ing] the findings in [State v.] Fletcher,” 92
N.C. App. 50, 373 S.E.2d 681 (1988), “that a visual identification was
satisfactory.” (T pp 68-69) The court appeared to agree, stating that “[c]learly
there is case law that, if the requisite experiences established foundation, can
testify based on visual observation about marijuana.” (T p 75) Nevertheless, the
- 12 -
court took Mr. Ellis’s motion “under advisement without prejudice” and “h[e]ld
ruling in abeyance.” (T pp 71, 74; R p 24)
At trial, Matkowsky testified as to her qualifications essentially as she had at
the pretrial hearing and was again admitted as an expert in forensic chemistry
without objection (T pp 153-156). She still could not provide a specific estimate as
to how many times she had tested marijuana. (T p 155)
Over the timely objection of defense counsel, Matkowsky testified that
based on her testing, her option was that that the loose plant material was “1.5
grams of marijuana Schedule VI.” (T p 163) Matkowsky then identified State’s
Exhibit 3 as the lab report reflecting her opinion regarding the loose plant material.
(T pp 164-165) The court overruled the defense’s objection, noted the exception
for the record, and admitted the exhibit. (T pp 165-166).
On cross-examination, Matkowsky again acknowledged that she was not
“not aware of what the error is as far as what the percentage chance that that test
could be wrong[.]” (T p 167) Matkowsky also stated that the “[Duquenois-Levine]
is an accepted test in the science community.” However, under questioning by the
Court, she acknowledged that she had no actual knowledge of whether the test was
accepted by the scientific community, only that it was accepted by the SBI.
THE COURT: Okay. Now, there is some confusion, apparently, and it may be mine. I apologize if it is. Is your response in terms of what is accepted by the State Bureau of Investigation bureau?
- 13 -
THE WITNESS: It is, and we – the bureau uses that because it is scientifically accepted in the science community.
(T p 168)
[COUNSEL:] . . . so you are relying on what the bureau tells you, and what they are saying is scientifically acceptable?
[THE WITNESS:] I believe there is reference material that can back that up.
(T p 169)
When the State closed after Matkowsky’s testimony, defense counsel asked
to be heard on a motion to dismiss as well as on all prior objections. (T p 172) On
the motion to suppress and motion in limine, the court ruled that counsel had
waived any objection to Matkowsky’s evidence by failing to object to Kozik’s
testimony. (T pp 172-174) The court stated that it had
indicated on the record that certainly the case law permits a law enforcement officer, without [sic] proper foundation, to testify based on training and experience that in the opinion of the officer, based upon that training and experience, a substance was what he contented it was.
(T p 173) It therefore held that
any issue that the defendant may have had with regard to the motion in limine, motion to suppress, is waived by failure to object to the testimony regarding the same subject matter coming in through Mr. Kozik, to which the defendant objects and excepts for the record.
(T p 174) The court entered a written order to the same effect. (R p 24) Both the
court’s ruling from the bench and written order were based solely on Kozik’s
- 14 -
testimony. (T pp 172-174; R p 24)
With regard to the motion to dismiss, defense counsel argued that the State
had failed to present substantial evidence of an essential element because the only
evidence that Mr. Ellis actually possessed the loose plant material was Marcom’s
incredible testimony. (T p 183) Counsel conceded for the purposes of arguing the
motion that there was evidence “in the light most favorable to the State that it was
marijuana.” (T p 184) The court denied the motion but noted the exception for the
record. (T pp 183-184)
After the charge conference, defense counsel once again “renew[ed] all
objections . . . made at trial” and the court “deemed [them] renewed in apt time.”
(T pp 206-207) Just before proceedings ended, defense counsel moved for
judgment notwithstanding the verdict. (T p 250) The court denied the motion,
apparently under the mistaken impression that notice of appeal divested it of
jurisdiction,5 “just “so the record [was] clear.” (T p 251)
STANDARD OF REVIEW
A trial court’s ruling on the merits regarding the admissibility of expert or
lay opinion testimony is reviewed for abuse of discretion. State v. Washington,
141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. rev. denied, 353 N.C.
396, 547 S.E.2d 427 (2001). However, whether a defendant has waived objection
5 A motion that the verdict was contrary to the weight of the evidence or that the evidence was insufficient to submit to the jury, whether or not such a motion was made before the verdict, “may be made and acted upon in the trial court whether or not notice of appeal has been given.” N.C. Gen. Stat. § 15A-1414(b)(1)-(2), (c).
- 15 -
to inadmissible evidence by failing to object to the same or similar evidence is a
question of law. Cf. Phillips v. Triangle Women's Health Clinic, Inc., 155 N.C.
App. 372, 376, 573 S.E.2d 600, 603 (2002), aff'd per curiam, 357 N.C. 576, 597
S.E.2d 669 (2003). “Like all questions of law, it is subject to de novo review on
appeal.” See Lewis v. Rapp, --- N.C. App. ---, ---, 725 S.E.2d 597, 602 (2012).
Under de novo review, the appellate court considers the matter anew and freely
substitutes its own judgment for that of the trial court. State v. Williams, 362 N.C.
628, 632-633, 669 S.E.2d 290, 294 (2008).
Even in the absence of an objection, admission of opinion evidence may be
reviewed for plain error. See, e.g., State v. Freeman, 185 N.C. App. 408, 414-415,
648 S.E.2d 876, 881-882 (2007), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663,
reconsideration denied, 362 N.C. 178, 657 S.E.2d 666 (2008), State v. Robinson,
346 N.C. 586, 603, 488 S.E.2d 174, 185 (1997). Error is plain where it “‘seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.’” State
v. Odom, 307 N.C. 655, 660-661, 300 S.E.2d 375, 378-379 (1983) (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)); see also Robinson, 346
N.C. at 603, 488 S.E.2d at 185 (quoting Odom, 307 N.C. at 660-661, 300 S.E.2d at
378-379). Mr. Ellis specifically contends that the trial court committed plain error
in admitting the testimony of Kozik and Matkowsky.
- 16 -
Whether the State has presented substantial evidence of every essential
element of an offense is also a question of law reviewed de novo. State v. Nettles,
170 N.C. App. 100, 103, 612 S.E.2d 172, 174, disc. rev. denied, 359 N.C. 640, 617
S.E.2d 286 (2005).
ARGUMENT
Identity of the controlled substance is an essential element of N.C. Gen. Stat.
§ 90-95(a)(1) offenses. State v. Neal, 196 N.C. App. 100, 103, 674 S.E.2d 713, 716
(2009). Accordingly, the State has the burden of proving the identity of the alleged
controlled substance beyond a reasonable doubt. State v. Ward, 364 N.C. 133,
147, 694 S.E.2d 738, 747 (2010). In State v. Ward, our Supreme Court held that
expert testimony “based on a scientifically valid chemical analysis and not mere
visual inspection” is required to prove the identity of a controlled substance
beyond a reasonable doubt. 364 N.C. at 142, 694 S.E.2d at 744. The burden is on
the State to show that chemical analysis or other method is sufficiently reliable to
identify a controlled substance beyond a reasonable doubt. State v. James, --- N.C.
App. ---, ---, 715 S.E.2d 884, 886 (N.C. Ct. App. 2011); see Ward at 140, 694
S.E.2d at 742.
The State failed to meet its burden in this case. Visual inspection is
insufficient as a matter of law to prove the identity of an alleged controlled
substance as marijuana beyond a reasonable doubt. The Duquenois-Levine test is
- 17 -
not a scientifically valid chemical analysis because it lacks sufficient indicia of
reliability. The trial court’s admission of this evidence was plain error because the
State introduced no other competent evidence regarding the identity of the loose
plant material and the charges should have been dismissed at the close of the
State’s case.
I. MR. ELLIS DID NOT WAIVE HIS OBJECTION BECAUSE KOZIK’S TESTIMONY WAS NOT THE SUBJECT OF THE MOTION IN LIMINE AND SBI LAB TEST RESULTS ARE NOT THE SAME EVIDENCE AS LAY VISUAL INSPECTION
The benefit of an objection to the admissibility of evidence by motion in
limine may be lost “if the defendant fails to further object to that evidence at the
time it is offered at trial.” State v. Carr, 145 N.C. App. 335, 338-339, 549 S.E.2d
897, 900 (2001) (quotation and citation omitted). For example, in Carr, “defendant
filed a motion in limine, seeking to prevent the State’s witnesses from making any
reference, directly or indirectly, that the items allegedly received from defendant
on . . . were or looked like cocaine or any derivation thereof, without scientific
proof of the chemical contents of the alleged substance.” 145 N.C. App. at 338,
549 S.E.2d at 900. At trial, the only objection made by defense counsel was to
admission of the SBI lab report. Id. at 339, 549 S.E.2d at 900. After the objection
was overruled, the witness testified that the lab report identified the substance as
cocaine. Id. This Court therefore held that the motion in limine was waived except
- 18 -
to as it related to admission of the lab report, the only portion of the evidence to
which defense counsel had actually objected. See id.
Here, in contrast to the broad motion in limine in Carr, defense counsel
objected specifically to evidence regarding “any results from the State Crime
Laboratory testing done on the plastics bag and loose plant material which are the
subject of this case.” (R p 21) Again unlike Carr, counsel made timely objections
to both Matkowsky’s opinion as to the identity of the loose plant material (T p 163)
and to admission of the SBI lab report. (T p 165) Because defense counsel made
timely objection at trial to the SBI test results and the lab report subject to the
motion in limine, that objection was not waived by failure to object to lay visual
identification which was not the subject of the motion.
Moreover, in order to constitute waiver, evidence admitted without objection
must be the same or similar to the evidence at issue. E.g., State v. Alford, 339 N.C.
562, 569, 453 S.E.2d 512, 516 (1995) (finding waiver where “virtually the same
evidence was admitted without objection”). Expert testimony regarding the results
of a chemical test is not virtually the same as lay opinion evidence based on visual
inspection. In Ward, our Supreme Court highlighted the difference between
identification evidence based on chemical analysis and visual inspection.
The concern in the present context is that jurors may ascribe so much authority to such a noteworthy expert in forensic chemistry that they treat his testimony as infallible and automatically accept his opinion on the chemical composition of a substance, without properly
- 19 -
appreciating – even with vigorous cross-examination and proper jury instructions – that the expert chemist never even performed a scientific, chemical analysis.
364 at 147, 694 S.E.2d at 747.
Because the trial court erred as matter of law in ruling that his objection to
the SBI test results was waived by failure to object to unrelated lay visual
inspection, this Court should at least vacate the judgment against Mr. Ellis and
remand the case for a hearing on the merits. However, remand is unnecessary
because the State introduced no competent evidence identifying the loose plant
material as marijuana.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY RELYING ON KOZIK’S VISUAL IDENTIFICATION OF THE LOOSE PLANT MATERIAL BECAUSE OUR SUPREME COURT DID NOT MAKE AN EXCEPTION FOR MARIJUANA IN STATE V. WARD
Marijuana is a Schedule VI controlled substance. N.C. Gen. Stat. § 90-94(1).
Our Supreme Court has found that the General Assembly clearly intended that
expert testimony was required to identify a controlled substance defined in
Schedule I through VI. Ward, 364 N.C. at 142-143, 694 S.E.2d at 744. It has
further held that “expert witness testimony [is] required to establish that the
substances . . . are in fact controlled substances” and it “must be based on a
scientifically valid chemical analysis and not mere visual inspection.” Id. at 142,
694 S.E.2d at 744.
- 20 -
A. Visual inspection is insufficient to identify marijuana beyond a reasonable doubt
Marijuana cannot be identified beyond a reasonable doubt by visual
inspection alone “because of the number of plants whose gross morphological
characteristics closely resemble Cannabis sativa.” People v. Park, 380 N.E.2d 795,
798 (Ill. 1978). Cannabis sativa, commonly known as marijuana, is a dicotyledon6
with seeds and flowers. Fredrick Whitehurst,7 Why Do We Convict As Many
Innocent People as We Do?: Forensic Analysis of Marijuana and the Kurzman
Mystery: A Case Study of Flawed Logic in Determination of Guilt, 41 Tex. Tech
L. Rev. 117, 118 (2008) (reproduced in the appendix). One of the originators of
the Nakamura/Thornton protocol identified 82 dicotyledons that could not be
differentiated from marijuana, even under microscopic inspection. Id. at 126
(citing G.R. Nakamura, Forensic Aspects of Cystolith Hairs of Cannabis and Other
Plants, Drug Abuse Control, 52 J. Ass'n Official Analytical Chemists 5, 6 (1969)).
6 “Anyone who has ever planted a bean, a watermelon seed, or a peanut knows what a dicotyledon is. Those first little fat leaves from the seed itself are the cotyledons, and plants that have two cotyledons are referred to as dicotyledons.” Fredrick Whitehurst, Why Do We Convict As Many Innocent People as We Do?: Forensic Analysis of Marijuana and the Kurzman Mystery: A Case Study of Flawed Logic in Determination of Guilt, 41 Tex. Tech L. Rev. 117, 120 (2008)
7 The author is a former Supervisory Special Agent in the Federal Bureau of Investigation Laboratory with a doctorate in chemistry from Duke University. Whitehurst, supra, at 117 n *, Wikipedia, Frederic Whitehurst, http://en.wikipedia.org/wiki/Frederic_Whitehurst (last visited Aug. 28, 2012). He is also an active member of the North Carolina State Bar. N.C. State Bar, Member Information, State Bar No. 28864, http://www.ncbar.gov/gxweb/viewmember.aspx?28864, (last visited Aug. 28, 2012).
- 21 -
It is not surprising, then, that law enforcement officers frequently mistake
other plants for marijuana. For example, in Waltman v. Payne, 535 F.3d 342 (5th
Cir. 2008), officers who had “received advanced training in and experience
identifying and eradicating marijuana” incorrectly identified legal kenaf plants are
marijuana based on visual inspection as well as other circumstantial evidence. Id.
at 344, 347. The Fifth Circuit Court of Appeals specifically noted that
“[m]arijuana and all varieties of kenaf share some attributes, but certain strains of
kenaf are virtually indistinguishable from marijuana by visual inspection. “ Id. at
344. The officer in State v. Carter, 848 P.2d 599 (Or. 1993), was also “a trained
expert in the visual identification of marijuana” but identified the color and stem of
a common houseplant as “consistent” with marijuana. Id. at 601, 603. Finally, in
State v. Seagull, 632 P.2d 44 (Wash. 1981), “a police officer who had observed
marijuana both in plant and crushed leaf form for the past 8 years” incorrectly
identified tomato plants as marijuana based on visual inspection. Id. at 50.
Visual identification is further complicated by the fact that most marijuana is
seized “in the form of crushed plant materials that no longer retain gross botanical
features,” Whitehurst, supra, at 119, as it was here. 8 (T p 158; R p 23) For
8 Whitehurst suggests the following experiment:
Go into your back yard and look at the types of plants you see. Look at the myriad of different leaves, shapes, plants, and even weeds. You might be looking at 100 species of plants right now. Take some of those leaves into your office and let them dry for a week or two. Then crush them up. Can you now differentiate those leaves in their crushed form just by looking at them, and can you tell which plant you took them from?
Whitehurst, supra, at 121.
- 22 -
example, over a one-year period, “1674 samples of marihuana, morphologically
identified as such, were submitted to the Wisconsin Crime Laboratory for
confirmatory testing. Only 85.6 percent of these were in fact marihuana. Therefore,
14.4 percent, or one in every seven samples, turned in as suspected marihuana
were not marihuana.” People v. Park, 380 N.E.2d at 798 (quotation and citation
omitted); see also Roussell, supra, at 111 (noting that “an expert in marijuana
identification[] presents an error rate of about 14 percent” using microscopic visual
inspection).
B. There is no marijuana exception under Ward
Ward notwithstanding, this Court has recently stated that “a police officer
experienced in the identification of marijuana may testify to his visual
identification of evidence as marijuana.” State v. Cox, --- N.C. App. ---, ---, ---
S.E.2d ---, ---, 2012 N.C. App. LEXIS 959, 13-14 (2012) (quoting State v. Garnett,
--- N.C. App. ---, ---, 706 S.E.2d 280, 286, disc. rev. denied, 365 N.C. 200, 710
S.E.2d 31 (2011)). State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988), is
often cited in support of this statement, e.g., Cox, 2012 N.C. App. LEXIS 959, 14,
Garnett at ---,706 S.E.2d at 286, as the State did in this case. (T pp 68-69) Fletcher
held that while chemical analysis is preferable, failure to introduce such evidence
is not fatal to the State’s case. 92 N.C. App. at 57, 373 S.E.2d at 685. But Fletcher
was decided before Ward made valid chemical analysis or other method capable of
- 23 -
identifying a controlled substance beyond a reasonable doubt an essential element
of the State’s case. Ward, 364 N.C. at 147, 694 S.E.2d at 747. In State v. Jones,
--- N.C. App. ---, S.E.2d 415 (2011), this Court stated “[a]ccording to Ferguson,
Ward did not ‘cast[] any doubt on the continued vitality of Fletcher.’” Id. at ---,
718 S.E.2d at 421 (citation omitted, initial alteration added). This statement is
invalid because the Court of Appeals panel in Ferguson could not have interpreted
the Supreme Court opinion in Ward since it was issued two days before Ferguson.
Subsequent Court of Appeals opinions have attempted to further elide this fact by
further truncating quotation of Ferguson. State v. Bailey, 2011 N.C. App. LEXIS
1414, 6 (N.C. Ct. App. July 5, 2011) (unpublished) (“[N]othing . . . casts any doubt
on the continued vitality of Fletcher.”) (all alteration in original).
Although this Court is obligated to follow its own precedent, that obligation
is secondary to the requirement that it obey the decisions of our Supreme Court.
State v. Coria, 131 N.C. App. 449, 456, 508 S.E.2d 1, 5 (1998). In Coria, this
Court followed generally relevant Supreme Court precedent, rather than Court of
Appeals decisions which were directly on point, but called for the opposite result.
Id. at 453-456, 508 S.E.2d at 4-6. It should do the same here.
Under Ward, visual inspection would be admissible to identify marijuana
only if “the State establishes before the trial court that another method of
identification is sufficient to establish the identity of the controlled substance
- 24 -
beyond a reasonable doubt[.]” 364 N.C. at 147, 694 S.E.2d at 747. Here, the State
failed to introduce any such evidence, relying instead entirely on Garnett and
Fletcher. (T pp 68-69) Neither of these cases nor any of the other North Carolina
cases cited above addresses the reliability or accuracy of visual identification of
marijuana. To the contrary, also as discussed above, case law clearly demonstrates
that visual identification of marijuana is neither accurate nor reliable.
III. EVEN IF VISUAL IDENTIFICATION COULD IDENTIFY MARIJUANA BEYOND A REASONABLE DOUBT, THE TRIAL COURT PLAINLY ERRED BY RELYING ON KOZIK’S TESTIMONY BECAUSE HE LACKED THE NECESSARY TRAINING AND EXPERIENCE
Even those cases which carve out a de facto exception to Ward allowing
visual identification of marijuana implicitly acknowledge that the witness must be
an expert. For example, in State v. Bailey, this Court stated that “opinion
testimony by a trained and experienced police officer is sufficient to identify
marijuana.” 2011 N.C. App. LEXIS 1414, 6 (emphasis added); see also Cox, 2012
N.C. App. LEXIS 959, 13-14 (quoting Garnett, --- N.C. App. at ---, 706 S.E.2d at
286). Even in pre-Ward cases, this Court required that an officer demonstrate
sufficient training and experience to qualify as an expert in order to offer opinion
testimony regarding visual identification of marijuana. State v. Clark, 30 N.C. App.
253, 254-255, 226 S.E.2d 398, 399 (1976) (citation omitted).
- 25 -
As illustrated by State v. Nabors, 207 N.C. App. 463, 700 S.E.2d 153(2010),
rev’d on other grounds, 365 N.C. 306, 718 S.E.2d 623 (2011), Kozik lacked
sufficient training and experience to qualify as an expert. Nabors is especially
pertinent because it addressed the qualifications of DPD narcotics agent Joe Byrd,
207 N.C. App. at 465, 469-471, 700 S.E.2d at 154, 157-158, who was Kozik’s
partner on the 21 July 2010. (T p 91-93, 96) It also involved a sting operation
using an undercover informant. 207 N.C. App. at 465, 700 S.E.2d at 154.
In Nabors, Byrd testified that he had three years of experience and had
participated in a “basic narcotic investigation class.” Id. at 469-470, 700 S.E.2d at
157. The undercover informant testified that he had two-and-a-half years of
personal experience using crack cocaine. Id. Testimony specifically described the
purportedly distinctive appearance of the suspected controlled substance. Id.
Nevertheless, this Court held:
Neither Officer Byrd nor [the uncover informant] was qualified or testified as an expert in the chemical analysis of drugs, forensic chemistry, or another related field. Accordingly, their opinion testimony as to the identity of the substance at issue was insufficient to establish that the substance introduced here was in fact a controlled substance. Furthermore, neither Officer Byrd's nor [the undercover informant]’s testimony was based on a scientifically valid chemical analysis and not mere visual inspection. There is no indication that Officer Byrd or [the undercover informant] did anything more than engage in conjecture that the substance purchased from Defendant was cocaine based on their previous encounters with cocaine and their visual observation of the substance in this case.
Nabors at 470-471, 700 S.E.2d at 158.
- 26 -
Kozik had less experience as a narcotics agent than Byrd did in Nabors. (T p
83) Like Byrd, Kozik’s specialized training consisted solely of the basic narcotics
investigator class. (T p 84) Kozik has only had two opportunities to view a known
sample of marijuana, once as part of basic law enforcement training and once in
the basic narcotics investigator class. (T pp 85-86) Whether Kozik would be able
to recall the characteristics of these known samples seems suspect as he is unable
to remember where he received his narcotics training. (T p 84) Similarly, Kozik
testified that marijuana has a distinctive odor but he was unable to describe that
odor. (T p 87) Marcom testified that she smoked marijuana once when she was
sixteen (T p 117) but gave no further basis for her visual identification of the loose
plant material. Neither were tendered or admitted as experts. It is clear that neither
did anything more than “engage in conjecture” that the loose plant material was
marijuana based on their previous encounters with it and their visual observation of
the material. Cf. Nabors at 470-471, 700 S.E.2d at 158.
Nabors was reversed on the ground that testimony from a defense witness
identifying the suspected controlled substance as cocaine was sufficient to
withstand a motion to dismiss. State v. Nabors, 365 N.C. 306, 313, 718 S.E.2d 623,
627 (2011). The Supreme Court expressly did not “address whether the trial court
erred in admitting . . . lay testimony that the substance was crack cocaine[.]” Id.
In this case, the only identification of the loose plant material came from the
- 27 -
State’s witnesses. 9 Therefore, this Court’s decision in Nabors controls here, rather
the Supreme Court decision.
IV. ASSUMING THAT MR. ELLIS WAIVED HIS OBJECTION, THE TRIAL COURT PLAINLY ERRED BY ADMITTING THE RESULTS OF THE SBI LAB TEST BECAUSE THE STATE FAILED TO DEMONSTRATE IT POSSESSED SUFFICIENT INDICIA OF RELIABILITY
Determining the reliability of a method used to identify an alleged controlled
substance “is ‘a preliminary, foundational inquiry into the basic methodological
adequacy of an area of expert testimony.’” Ward, 364 N.C. at 140, 694 S.E.2d at
743 (quoting Howerton v. Arai Helmet, Ltd. , 358 N.C. 440, 460, 597 S.E.2d 674,
687(2004)). “Initially, the trial court should look to precedent for guidance in
determining whether the theoretical or technical methodology underlying an
expert's opinion is reliable.” Howerton at 460, 597 S.E.2d at 687. “In the event
that precedent does not guide the determination,” Howerton identified several non-
exclusive indices of reliability. Ward at 140, 694 S.E.2d at 743. The burden of
demonstrating reliability was on the State. Id. The trial court erred by denying
Mr. Ellis’s motion in limine because precedent clearly indicates that the
Duquenois-Levine test and Nakamara/Thornton protocol are not reliable means of
9 Defense counsel conceded for the sake of arguing for dismissal that there was evidence “in the light most favorable to the State that it was marijuana.” (T p 184) However, “[a]s our Supreme Court has noted, ‘it is axiomatic that the arguments of counsel are not evidence.’” State v. Foster, --- N.C. App. ---, 729 S.E.2d 116 (2012) (quoting State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996)).
- 28 -
identifying marijuana and the State failed to meet its burden by presenting
evidence of any recognized indices of reliability.
In State v. Tate, 300 N.C. 180, 265 S.E.2d 223 (1980), our Supreme Court
upheld the trial court’s exclusion of Duquenois-Levine test results because the test
was “not scientifically accepted, reliable or accurate” and was “not specific for
marijuana.” Id. at 184, 265 S.E.2d at 226. Similarly, in State v. Wind, 208
N.W.2d 357 (Wisc. 1973), a chemist at the state crime laboratory visually and
microscopically examined loose plant material, as well as performing a Duquenois-
Levine test. Id. at 360. He admitted “that neither of these tests was specific for
marijuana.” Id. The Wisconsin Supreme Court stated that this evidence “standing
alone [was] not sufficient to meet the burden of proving the identity of the
substance beyond a reasonable doubt.” Id. at 361.
Tate was also based on the finding that the Duquenois-Levine test “gives a
positive reaction for some brands of coffee, as well as aspirin.” Id. at 184, 265
S.E.2d at 226. A number of other jurisdictions have also recognized the potential
for false positives. E.g., People v. Park, 380 N.E.2d 795, 800 (Ill. 1978)
(“substances other than cannabis may produce a ‘false positive’ with this test”).
Scientific literature and popular media also report a plethora of substances produce
false positives in the Duquenois-Levine test. E.g., Stewart J. Lawrence & John
Kelly, A Miscarriage of Justice on Marijuana, The Guardian (Aug. 4, 2011),
- 29 -
http://www.guardian.co.uk/commentisfree/cifamerica/2011/aug/04/marijuana-
flawed-test (citing recent cases where sage incense and homemade chocolate
produced false positives), M.J. de Faubert Maunder, Two Simple Colour Tests for
Cannabis, 5 UNODC Bulletin on Narcotics 5, 37-42 tab. VII (1969), available at
http://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1969-01-
01_4_page006.html#f001 (listing calamus, culvers root, ergot, ginger, gum
ammoniac, gum animi, gum copal, gum galbanum, gun myrrh, gum sandarac,
henna, lettuce opium, liquoirice, nutmeg, orrid, poison flag, sagapenum, santal
wood (red), thuja, tolu, wood bentony, and woodsage as producing false positives).
The potential for false positives is just one fallibility the State would have needed
to overcome to meet its burden of proving that the test results were sufficiently
reliable.
Non-exclusive indices of reliability recognized by in Howerton include,
inter alia, “the expert’s use of established techniques” and “the expert’s
professional background in the field.” 358 N.C. at 460, 597 S.E.2d at 687. This
Court has also recognized that the factors adopted by the United States Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), may be relevant to determining reliability. State
v. Underwood, 134 N.C. App. 533, 542, 518 S.E.2d 231, 239 (1999). These
factors include, inter alia: (1) whether the test has been submitted to public peer
- 30 -
review, (2) the known or potential rate of error, and (3) general acceptance in the
scientific community. Daubert, 509 U.S. at 593-594, 125 L. Ed.2d at 487. The
State failed to meet its burden of showing reliability under either Howerton or
Daubert.
Ward warned that “caution should be exercised in assuring that the subject
matter of the expert witness's testimony relates to the expertise the witness brings
to the courtroom.” 364 N.C. at 146 n.5, 694 S.E.2d at 738 n.7 (quotation and
alteration omitted). There was no evidence Matkowsky had any background in
botany, knowledge crucial to the Nakamura/Thornton protocol. Whitehurst, supra,
at 127. After examining only 600 of the up to 400,000 plants similar to marijuana,
the protocol’s originator identified 82 that he could not distinguish under
microscope examination. Id. at 126. Lack of a botany background made
Matkowsky’s visual identification of the loose plant material even more suspect.
The SBI has used the Duquenois-Levine test since 1971. N.C. State Crime
Laboratory, Drug Chemistry Technical Procedure Section Manual, Procedure A-02
(2006). However, as the United States Supreme Court recognized in Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009),
“[s]erious deficiencies have been found in the forensic evidence used in criminal
trials.” Id. at 319, 174 L. Ed. 2d at 326-327. “[T]he length of time a method has
been employed does not necessarily heighten its reliability or alleviate [these]
- 31 -
concerns” because these deficiencies only recently came to light. Ward, 364 N.C.
at 146, 694 S.E.2d at 746.
The State failed to elicit testimony that the SBI test procedures had been
peer reviewed. (T pp 52-53) Matkowsky’s testimony did not establish that the
SBI test procedures were accepted by the wider scientific community. As stated by
the trial court,
I understand that the testimony is that it is generally accepted within the State Bureau of Investigation laboratory, a standard utilized by the State Bureau of Investigations, and I mean absolutely no disrespect, but all of us, I think, are aware that a number of state labs, not exclusive to North Carolina, are undergoing greater scrutiny as a result of issues that have arisen over the last four or five years in particular about methodology, standards used, whether or not they fall under generally accepted practices by experts in the field. So we have got potentially an issue of – this is just like Ward.
(T p 67) Finally, Matkowsky was also unable to testify as the error rate for either
the Duquenois-Levine test or the Nakamara/Thornton protocol. (T p 59) A 2012
survey of the scientific literature found error rates as high as 25 percent. Rousell,
supra, at 111 (citing Keith Bailey, The Value of the Duquenois Test for Cannabis -
A Survey, 24 J. Forensic Sci. 817, 822, 833 (1979)).
This rate of error is not surprising because, as stated by the SBI’s Drug
Chemistry Technical Procedure Section Manual, the Duquenois-Levine test is only
a preliminary or screening test. Id. at Procedure A-02; see also Moore v. United
States, 374 A.2d 299, 302 (D.C. 1977) (describing Duquenois-Levine as screening
- 32 -
test). It “is not conclusive; it provides only presumptive results.” United States v.
Perez, 2012 U.S. Dist. LEXIS 8710 (W.D. La. Jan. 25, 2012) (emphasis in
original). This is equally true for the Nakamara/Thornton protocol as its
components. “The microscopic and Duquenois-Levine chemical test should be
used as a screening method only.” Fredrick W. Fochtman & Charles L. Winek, A
Note on the Duquenois-Levine Test for Marijuana, 4 Clinical Toxicology 287,
288-289 (1971) (quoted in Whitehurst, supra, at 128). A study funded in part by
the State of North Carolina specifically recommended that gas chromatography
mass spectrometry (GC/MS) be used to confirm the results of the
Nakamara/Thornton screening protocol. Whitehurst at 128 (citing C.G. Pitt et al.,
The Specificity of the Duquenois Color Test for Marijuana and Hashish, 17 J.
Forensic Sci. 693, 699 (1972)). GC/MS is a “relatively simple and inexpensive
test.” Moore, 374 A.2d at 302. Matkowsky admitted that she could have used
GC/MS to confirm her results. (T p 59, 60) It is unclear why she did not, other
than the reality that “forensic scientists sometimes face pressure to sacrifice
appropriate methodology for the sake of expediency.” Ward, 364 N.C. at 141, 694
S.E.2d at 743 (quotation and citation omitted). By its very nature, a preliminary
test cannot provide the proof beyond a reasonable doubt required under Ward.
V. MR. ELLIS IS ENTITLED TO HAVE THE JUDGMENT AGAINST HIM VACATED BECAUSE THE STATE FAILED TO PRESENT ANY COMPETENT EVIDENCE
- 33 -
THAT THE LOOSE PLANT MATERIAL WAS MARIJUANA
In order to withstand a motion to dismiss, the State must present substantial
element of both every essential element of the offense. State v. Nettles, 170 N.C.
App. 100, 103, 612 S.E.2d 172, 174, disc. rev. denied, 359 N.C. 640, 617 S.E.2d
286 (2005). Identity of the controlled substance is an essential element of N.C.
Gen. Stat. § 90-95(a)(1) offenses. State v. Neal, 196 N.C. App. 100, 103, 674
S.E.2d 713, 716 (2009). Admission of Kozik’s legally insufficient visual
identification and the unreliable SBI test results was plain error because the State
produced no other evidence that the loose plant material was marijuana and,
consequently, Mr. Ellis was entitled to have the charges against him dismissed.
CONCLUSION
For all the foregoing reasons, Mr. Ellis respectfully requests that this Court
vacate the judgment against him and dismiss the charges because the State failed to
introduce any competent evidence that the loose plant matter was marijuana.
Alternatively, Mr. Ellis respectfully requests that this Court vacate the judgment
and remand the case for a new hearing on his motion in limine or grant any other
relief it may deem just and proper.
Respectfully submitted this the 30th day of August 2012.
- 34 -
__________________________ Andrew L. FarrisCounsel for Defendant-AppellantState Bar No. 40352Post Office Box 2247Durham, North Carolina 27702Telephone: (919) 688-7393Facsimile: (919) 683-6323Email: [email protected]
CERTIFICATE OF WORD COUNT
Pursuant to N.C. R. App. P. Rule 28(j), counsel for the Appellant hereby
certifies that the foregoing brief was prepared using a proportional font and is less
than 8,750 words (exclusive of cover, indexes, tables of authorities, certificates of
service and compliance, and appendix) as reported by the word-processing
software used.
CERTIFICATE OF SERVICE
- 35 -
The undersigned hereby certifies that a copy of the foregoing brief has been
duly served on Counsel for the State of North Carolina by depositing in the United
States Mail a copy of the same in a postage-paid envelope to the following address:
James Aldean Webster, IIIAssistant Attorney GeneralNorth Carolina Department of TransportationAttorney General’s Office1505 Mail Service CenterRaleigh, North Carolina 27699-1505
This the 30th day of August 2012.
__________________________Andrew L. Farris
Counsel for Defendant-Appellant
- 36 -
NO. COA12-861 ELEVENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA, ))
v. ) From Harnett)
THOMAS EDWARD ELLIS, III, )Defendant )
* * * * * * * * * * * * * * * * *
APPENDIX
* * * * * * * * * * * * * * * * *
TRANSCRIPT SECTIONS
T pp 62-64………………………………………………………………………….1
CASES
State v. Bailey, 2011 N.C. App. LEXIS 1414 (N.C. Ct. App. July 5, 2011) (unpublished)………………………………………………………………..4
State v. Harris, 2002 N.C. App. LEXIS 1712 (N.C. Ct. App. Feb. 19, 2002) (unpublished)………………………………………………………………..7
OTHER AUTHORITIES
N.C. State Crime Laboratory, Drug Chemistry Technical Procedure Section Manual, Procedure A-02 (2006)……………………………………………11
Aaron Roussell, The Forensic Identification of Marijuana: Suspicion, Moral Danger, and the Creation of Non-Psychoactive THC, 22 Alb. L.J. Sci. &
- 37 -
Tech. 103 (2012)…………………………………………………………...14
Fredrick Whitehurst, Why Do We Convict As Many Innocent People as We Do?: Forensic Analysis of Marijuana and the Kurzman Mystery: A Case Study of Flawed Logic in Determination of Guilt, 41 Tex. Tech L. Rev. 117 (2008)………………………………………………………………………36
