Opinion
No. COA12–861.
2013-05-21
STATE of North Carolina, v. Thomas Edward ELLIS, III.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean (“Dean”) Webster, III, for the State. Andrew L. Farris for defendant appellant.
Appeal by defendant from judgment entered 26 April 2012 by Judge Gregory A. Weeks in Harnett County Superior Court. Heard in the Court of Appeals 29 January 2013. Attorney General Roy Cooper, by Assistant Attorney General J. Aldean (“Dean”) Webster, III, for the State. Andrew L. Farris for defendant appellant.
McCULLOUGH, Judge.
Thomas Edward Ellis, III, (“defendant”) appeals from his convictions for possession of marijuana with the intent to sell or deliver and selling marijuana. For the following reasons, we find no prejudicial error.
I. Background
Defendant was arrested on 3 May 2011, pursuant to a warrant finding probable cause that defendant possessed marijuana with the intent to sell or deliver, sold marijuana, and delivered marijuana. The arrest stemmed from an operation conducted by the Dunn Police Department (the “DPD”) on 21 July 2010 as part of a larger campaign to curb illegal drug activity. Officer Daniel Kozik (“Officer Kozik”), a narcotics agent for the DPD, organized this specific operation where Elaine Marcom (“Ms.Marcom”), a confidential informant for the DPD, purchased marijuana from defendant. On 12 September 2011, a Harnett County Grand Jury indicted defendant on one count of possession of marijuana with intent to sell or deliver, one count of selling marijuana, and one count of delivering marijuana.
On 16 April 2012, defendant filed a motion “to suppress the plastic bag and the loose plant material tested by the State Crime Laboratory on September 13, 2011[,] along with the results of any testing on the plant material[ ]” on the basis that “[t]he State is unable to prove that the evidence is the same as that taken into police custody ....“ In addition, on 24 April 2012, defendant filed a motion in limine “to suppress the plastic bag and the loose plant material tested by the State Crime Laboratory on September 13, 2011, along with the results of any testing on the plant material[ ]” on the basis that “[t]he Durquenois–Levine [sic] test conducted on the substance alleged to be marijuana is not scientifically accepted, reliable, or accurate, and the test is not specific for marijuana.”
The case was called for jury trial in Harnett County Superior Court on 24 April 2012, the Honorable Gregory A. Weeks, Judge presiding. Subsequent to jury selection, but prior to the jury being impaneled, the trial court heard arguments on defendant's pretrial motions. During the 25 August 2012 hearing, Alicia Matkowsky (“Ms.Matkowsky”), a forensic scientist employed by the State Bureau of Investigation at the State Crime Laboratory (the “laboratory”), testified concerning the process she used to identify the substance as marijuana. Ms. Matkowsky described the process as a three-step analysis including macroscopic examination, microscopic examination, and a chemical color test known as the Duquenois–Levine test. Upon conclusion of the hearing, the court took defendant's motions under advisement and held its ruling in abeyance. The case then proceeded to trial.
At trial, Ms. Marcom and Officer Kozik testified that the substance was marijuana. Ms. Matkowsky was then called as an expert witness to testify regarding the analysis performed at the laboratory. Based on the evidence presented, the jury returned guilty verdicts for all three charges on 26 April 2012. The trial court arrested judgment on the delivering marijuana offense and consolidated the possession with intent to sell or deliver marijuana and the selling marijuana offenses for judgment. Defendant was sentenced to a term of 5 to 6 months and the sentence was suspended on condition that defendant serve 18 months of supervised probation. Defendant gave oral notice of appeal.
II. Analysis
On appeal, defendant contends that the State failed to meet its burden of proving that the loose plant material sold to Ms. Marcom by defendant was marijuana, a schedule VI controlled substance. SeeN.C. Gen.Stat. § 90–94(1) (2011). As a result, defendant contends his convictions pursuant to N.C. Gen.Stat. § 90–95(a)(1) cannot stand. More specifically, defendant raises issues regarding the trial court's admission of certain evidence relating to the identification of the loose plant material.
Waiver of Objections
Expanding on the background, prior to trial, defendant filed both a motion to suppress and a motion in limine in an attempt to exclude “the plastic bag and the loose plant material ..., along with the results of any testing on the plant material[ ]” from the evidence presented at trial. Upon hearing testimony from Ms. Matkowsky concerning the evidence and the tests she performed on the loose plant material, the trial court took defendant's motions under advisement and held its ruling in abeyance.
At trial, Officer Kozik was called as the State's first witness and testified that, based on his training and experience, the loose plant material was marijuana. Defendant did not object to Officer Kozik's identification of the substance. The State later called Ms. Matkowsky as its last witness. Ms. Matkowsky testified that, when she received the loose plant material at the laboratory, she performed the three-step analysis described above. Over defendant's objection, Ms. Matkowsky then opined that, based on her macroscopic and microscopic examinations of the substance and the results of the Duquenois–Levine test, the loose plant material was marijuana. Immediately following Ms. Matkowsky's identification of the substance, the loose plant material and the report containing the laboratory test results were admitted into evidence over defendant's objections.
At the close of the State's evidence, defendant renewed his objections to the admission of the loose plant material, the laboratory test results, and expert testimony based on the test results admitted into evidence. In response, the trial court found that “any issue that the defendant may have had with regard to the motion in limine, motion to suppress, [was] waived by [defendant's] failure to object to the testimony regarding the same subject matter coming in through [Officer] Kozik[ ] ....“
On appeal, defendant now contends that the trial court erred in concluding he waived his objections to the admission of “the results of any testing on the plant material[ ]” by failing to object to Officer Kozik's testimony. Specifically, defendant argues that “the results of any testing on the plant material[ ]” and Ms. Matkowsky's expert testimony based thereupon was not virtually the same as the lay witness testimony elicited from Officer Kozik. We agree.
On appeal, defendant does not assert that the trial court erred in finding that he waived objection to the admission of “the plastic bag and the loose plant material tested by the State Crime Laboratory on September 13, 2011[.]” Defendant only contends that he did not waive objection to “the results of any testing on the plant material.”
A motion in limine is a motion made pretrial “in order to prevent the jury from ever hearing the potentially prejudicial evidence thus obviating the necessity for an instruction during trial to disregard that evidence if it comes in and is prejudicial.” State v. Tate, 300 N.C. 180, 182, 265 S.E.2d 223, 225 (1980). Yet, “a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.” State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723 (2000). “ ‘[W]hen ... evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.’ “ State v. Davis, 353 N.C. 1, 22, 539 S.E.2d 243, 258 (2000) (quoting State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989)). “The decision of whether to grant such a motion rests in the sound discretion of the trial judge.” State v. Hightower, 340 N.C. 735, 746–47, 459 S.E.2d 739, 745 (1995). However, whether defendant has waived the issues in his motions by failing to object to the same or similar evidence is a question of law subject to de novo review.
While we recognize that the purpose of eliciting Officer Kozik's testimony and introducing the laboratory test results and expert testimony based thereupon was similar, to identify the loose plant material sold by defendant to Ms. Marcom as marijuana, we hold that the laboratory test results and expert testimony based thereupon is not virtually the same evidence as Officer Kozik's visual identification of the loose plant material as marijuana. See State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010) (noting the difference between visual identification and chemical analysis). Furthermore, defendant's pretrial motions did not seek to exclude lay witness testimony concerning visual identification of the loose plant material. Instead, defendant explicitly sought to exclude from evidence “the results of any testing on the plant material.” Because we determine that the evidence was not virtually the same, we hold that the trial court erred by concluding defendant waived his objection to the admission of “the results of any testing on the plant material[ ]” by failing to object to Officer Kozik's visual identification of the plant material.
Nevertheless, we hold the trial court's error was nonprejudicial. For the reasons discussed below, the visual identification of the loose plant material by Officer Kozik was sufficient evidence to support defendant's convictions for possession of marijuana with intent to sell or deliver and selling marijuana without considering the laboratory test results and Ms. Matkowsky's testimony based thereupon.
Visual Identification
Defendant also argues that Officer Kozik's visual identification of the loose plant material as marijuana was insufficient to support his convictions. As noted by the State, defendant's second argument seems to be challenging the trial court's denial of his motion to dismiss.
We address this issue without considering the laboratory test results and Ms. Matkowsky's expert testimony.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
In this appeal, defendant only challenges the sufficiency of the evidence regarding whether the loose plant material was marijuana, a schedule VI controlled substance. In support of his argument, defendant cites State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), for the proposition that expert testimony based on scientifically valid chemical analysis is required to identify a schedule VI controlled substance.
Defendant attempts to bolster his argument that visual identification of marijuana is insufficient by citing cases from other jurisdictions. We, however, do not consider these cases because North Carolina case law is on point.
In Ward, our Supreme Court granted discretionary review to decide whether the trial court erred when it found that an expert's visual identification of prescription medicines was sufficiently reliable. Id. at 139, 694 S.E.2d at 742. After reviewing precedent, enactments of the General Assembly, and the testimony provided at trial, our Supreme Court followed the reasoning set forth in Judge Steelman's dissent in State v. Llamas–Hernandez, 189 N.C.App. 640, 659 S.E.2d 79 (2008), rev'd per curiam, 363 N .C. 8, 673 S.E.2d 658 (2009), which was adopted by our Supreme Court. In doing so, the Court held in Ward that the “visual inspection methodology ... proffered as an area for expert testimony [was] not sufficiently reliable to identify the substances at issue.” 364 N.C. at 142, 694 S.E.2d at 743. The Court further held that “expert witness testimony required to establish that the substances introduced here [were] in fact controlled substances must be based on a scientifically valid chemical analysis and not mere visual inspection.” Id. at 142, 694 S.E.2d at 744.
The State, on the other hand, contends that Ward is not applicable in the present case where defendant was alleged to have possessed, sold, and delivered marijuana. Instead, the State claims that this Court's decision in State v. Fletcher, 92 N.C.App. 50, 373 S.E.2d 681 (1988), survived Ward and is controlling.
In Fletcher, the defendant was convicted of possession of marijuana with intent to sell and selling marijuana. Id. at 51, 373 S.E.2d at 682. On appeal to this Court, the defendant argued that “the State failed to present evidence sufficient to show the substance obtained ... was marijuana.” Id. at 56, 373 S.E.2d at 685. In deciding there was sufficient evidence where two police officers identified the substance as marijuana, this Court stated that,
[although] it would have been better for the State to have introduced evidence of chemical analysis of the substance, ... the absence of such direct evidence does not, as the [defendant] suggests, prove fatal. Though direct evidence may be entitled to much greater weight with the jury, the absence of such evidence does not render the opinion testimony insufficient to show the substance was marijuana.
Id. at 57, 373 S.E.2d at 686 (citation omitted).
Upon review of the pertinent case law, including Ward, Fletcher, and other related cases, we agree with the State that Fletcher still has vitality following Ward.
First, we note that our Supreme Court's holding in Ward is not absolute. In Ward, the Court stated that “[u]nless the State establishes before the trial court that another method of identification is sufficient to establish the identity of the controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Ward, 364 N.C. at 147, 694 S.E.2d at 747. Thus, chemical analysis is not always necessary to identify a controlled substance.
The trial court in this case recognized the admissibility of Officer Kozik's lay opinion testimony, noting “certainly the case law permits a law enforcement officer, without 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 [sic] it was.”
Second, we look to the Supreme Court's analysis in Ward, which applied the reasoning in the Llamas–Hernandez dissent. Ward, 364 N.C. at 142, 694 S.E.2d at 743–44 (discussing the Llamas–Hernandez dissent). The defendant in Llamas–Hernandez was convicted of trafficking in cocaine by possession of 28 grams or more. Llamas–Hernandez, 189 N.C.App. at 642, 659 S.E.2d at 80. On appeal, the defendant argued that “the trial court erred by admitting the lay witness testimony of [two detectives] that the [powder] substance found ... was cocaine.” Id. at 643, 659 S.E.2d at 81. A divided panel of this Court, feeling bound by its decision in State v. Freeman, 185 N.C.App. 408, 648 S.E.2d 876 (2007) (extending Fletcher to lay witness testimony identifying pills as crack cocaine), appeal dismissed,362 N.C. 178, 657 S.E .2d 663 (2008), reconsideration denied,362 N.C. 178, 657 S.E.2d 666 (2008), upheld the trial court's decision to allow the lay witness testimony. Llamas–Hernandez, 189 N.C.App. at 647, 659 S .E.2d at 83–84. The Supreme Court, however, adopted the dissenting opinion per curiam. Llamas–Hernandez, 363 N.C. 8, 673 S.E.2d 658. The dissent reasoned that if identification by visual inspection was intended to be satisfactory for identification purposes, the General Assembly would not have adopted “a technical, scientific definition of cocaine[.]” Llamas–Hernandez, 189 N.C.App. at 652, 659 S.E.2d at 86 (Steelman, J., concurring in part and dissenting in part). Thus, the dissent concluded that “[t]he trial court erred in allowing the lay opinion testimony of the officers that the [powder substance] was cocaine ...” and reversed the defendant's conviction because without the testimony there was no evidence as to the nature of the powder substance. Id. at 654, 659 S.E.2d at 88. Our Supreme Court reached a similar result in Ward where the substances at issue were prescription medicines. 364 N.C. at 148, 694 S.E.2d at 747–48.
We find that applying the reasoning in the Llamas–Hernandez dissent and Ward to this case yields a different result. Whereas cocaine and prescription medicines have technical, scientific definitions, marijuana is simply identified in N.C. Gen.Stat. § 90–94(1) as a schedule VI controlled substance. Furthermore, we find this Court's analysis in State v. Ward, 199 N.C.App. 1, 681 S.E.2d 354 (2009), aff'd and remanded, 364 N.C. 133, 694 S.E.2d 738 (2010), instructive. In Ward, this Court distinguished Fletcher based on the facts, indicating that “the identification of marijuana is different in both degree and kind from the identification of prescription medications.” Id. at 24,681 S.E.2d at 370. We still believe this distinction is relevant.
Third, since our Supreme Court's decision in Ward, this Court has continued to cite Fletcher for the notion that “a police officer experienced in the identification of marijuana may testify to his visual identification of evidence as marijuana[.]” State v. Garnett, 209 N.C.App. 537, 546, 706 S.E.2d 280, 286,disc. review denied,365 N.C. 200, 710 S.E.2d 31 (2011); see also State v. Cox, ––– N.C.App. ––––, ––––, 731 S.E.2d 438, 443 (2012) ( “[T]he trial court did not err by allowing the two officers to identify the green vegetable matter as marijuana based on their observation, training, and experience.”); State v. Johnson, ––– N.C.App. ––––, ––––, –––S.E.2d ––––, –––– (filed 5 February 2013) (COA12–827) (“It is well established that officers with proper training and experience may opine that a substance is marijuana.”).
We additionally note that while arguing his motion to dismiss, defendant conceded “that there was ample evidence in light of the—in the light most favorable to the State that it was marijuana.”
Plain Error
Defendant's third argument on appeal is that the trial court plainly erred by allowing Officer Kozik to testify concerning the identification of the loose plant material as marijuana. Because “[i]t is well established that officers with proper training and experience may opine that a substance is marijuana [,]” Johnson, ––– N.C.App. at ––––, ––– S.E.2d at ––––, defendant specifically contends that Officer Kozik lacked the necessary training and experience to identify the substance. We do not agree.
At trial, Officer Kozik testified that he had been a sworn law enforcement officer for over seven years and a member of the DPD for the last four years. Officer Kozik further testified that he was now a narcotics agent with the DPD and had served in that capacity for over two years. As a narcotics agent, Officer Kozik received basic narcotics training in which he was trained to identify marijuana. This training included observation of known samples of marijuana. Furthermore, Officer Kozik testified that he had investigated hundreds of marijuana cases over the course of his law enforcement career and had participated in numerous undercover operations prior to the operation that is the focus of this case. Based on this training and experience, Officer Kozik then testified that, “[b]ased on the texture, how it appeared, and the odor, [he] immediately suspected it to be marijuana.” Officer Kozik then affirmed his testimony stating that he was of the opinion the substance was marijuana.
Relying on 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), defendant contends that Officer Kozik lacked necessary training and experience to qualify as an expert. In Nabors, we determined that DPD narcotics agent Joe Byrd, who had similar training and experience as Officer Kozik, was unqualified to testify as to the identity of a substance alleged to be cocaine based solely on visual inspection. Id. at 472, 700 S.E.2d at 159. Defendant now asserts that if DPD narcotics agent Joe Byrd was unqualified to identify cocaine by visual inspection in Nabors, Officer Kozik cannot be qualified to identify marijuana by visual inspection in this case. We do not agree.
Nabors is distinguishable from the present case on the basis that the controlled substance at issue in Nabors was cocaine. As discussed above, and as recognized by this Court in Nabors, visual identification of cocaine is not sufficient to establish the identification of a controlled substance. On the other hand, “our appellate courts have never held that an officer must be tendered as an expert before identifying a particular substance as marijuana.” State v. Ferguson, 204 N.C.App. 451, 456, 694 S.E.2d 470, 475 (2010). Thus, we do not find Nabors instructive in the present case and hold Officer Kozik's training and experience sufficient to form a lay opinion as to the identification of marijuana.
III. Conclusion
For the reasons discussed above, we hold that Officer Kozik's visual identification of the substance was sufficient evidence to support defendant's convictions. Therefore, we find no prejudicial error.
No error. Judges HUNTER (ROBERT C.) and DAVIS concur.
Report per Rule 30(e).