State v. Carter , 2017 N.C. App. LEXIS 666 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-854
Filed: 15 August 2017
Cabarrus County, No. 14 CRS 054625
STATE OF NORTH CAROLINA,
v.
GUSS BOBBY CARTER, Jr., Defendant.
Appeal by Defendant from judgment entered 23 February 2016 by Judge
Martin B. McGee in Cabarrus County Superior Court. Heard in the Court of Appeals
21 February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Tiffany Y.
Lucas, for the State.
Mark Montgomery for Defendant-Appellant.
INMAN, Judge.
A trial court errs by allowing lay opinion testimony visually identifying a
substance, crack cocaine, as a controlled substance. However, this error is not
prejudicial when the State has presented expert testimony, based upon a
scientifically valid chemical analysis, that the substance in question is a controlled
substance.
Guss Bobby Carter (“Defendant”) appeals from a judgment entered 23
February 2016 upon his convictions following a jury trial for possession of cocaine,
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Opinion of the Court
possession of drug paraphernalia, possession of an open container of alcohol in the
passenger area of a motor vehicle, and for attaining habitual felon status. Defendant
argues that the trial court committed plain error by admitting the opinion testimony
of an officer who visually identified a controlled substance. Defendant also argues he
received ineffective assistance of counsel due to his trial counsel’s failure to object to
the testimony. After careful review, we hold that Defendant has failed to
demonstrate prejudice necessary to prevail on either argument.
Factual and Procedural Background
The evidence at trial tended to show the following:
On 3 October 2014, Special Agent Chris Kluttz (“Agent Kluttz”) of the North
Carolina Department of Alcohol Law Enforcement (“ALE”) pulled over a Ford Taurus
traveling erratically on Interstate 85 after he spotted an open beer can in the
passenger area. There were four individuals in the vehicle; Defendant was sitting in
the front passenger seat. Upon smelling alcohol and seeing open containers, Agent
Kluttz asked the driver to step out of the vehicle. Agent Kluttz searched the driver
and found a glass pipe in his right front pants pocket, and placed the driver in
handcuffs.
Agent Kluttz then proceeded back to the vehicle and spoke briefly with
Defendant before asking him to exit the vehicle. As Defendant stepped out, Agent
Kluttz saw what he described as a “small baggie . . . of crack cocaine fall from
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[Defendant’s] person . . . to the pavement . . . .” Agent Kluttz then placed Defendant
under arrest.
Defendant was indicted on 2 February 2015 for felony possession of cocaine,
possession of drug paraphernalia, and possession of an open container of alcohol in
the passenger area of a motor vehicle. Defendant was subsequently indicted on 17
August 2015 for having attained habitual felon status. Defendant’s case was tried
before a jury on 22 and 23 February 2016.
At trial, the State presented testimonial evidence from Agent Kluttz in which
he repeatedly identified the substance that fell from Defendant as “crack cocaine.”
Agent Kluttz based this identification on his training, experience working with the
ALE, and his perceptions of the substance and packaging. Agent Kluttz was not
tendered as an expert. The State introduced additional evidence in the form of a lab
report and expert testimony by Jennifer McConnell (“McConnell”), a chemical analyst
with the North Carolina State Crime Laboratory. McConnell testified that the
results of her testing indicated that the substance in the bag was consistent with
cocaine.
The jury found Defendant guilty of possession of cocaine, possession of drug
paraphernalia, and possession of an open container of alcohol in the passenger area
of a motor vehicle. Defendant pleaded guilty to having attained habitual felon status.
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The trial court consolidated the convictions and sentenced Defendant to an active
prison term of 42 to 63 months. Defendant filed timely notice of appeal.
Analysis
I. Admissibility of Lay Opinion Testimony
Defendant contends that Agent Kluttz’s identification of the substance as crack
cocaine was inadmissible lay opinion testimony because it was not based on a
scientifically valid chemical analysis. While we agree that Agent Kluttz’s testimony
was inadmissible, we hold that Defendant has failed to demonstrate plain error.
A. Standard of Review
Defendant did not preserve the issue of the admissibility of Agent Kluttz’s
testimony at trial because he failed to lodge an objection when the challenged
testimony was elicited. “Unpreserved error in criminal cases . . . is reviewed only for
plain error.” State v. Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012)
(citations omitted). To show plain error, “a defendant must demonstrate that a
fundamental error occurred at trial.” Id. at 518, 723 S.E.2d at 334 (citation omitted).
A fundamental error requires a defendant to establish prejudice, i.e., that the error
“had a probable impact on the jury’s finding that the defendant was guilty.” Id. at
518, 723 S.E.2d at 334 (internal quotation marks and citations omitted).
B. Discussion
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In a criminal case, the State must prove every element of a criminal offense
beyond a reasonable doubt. State v. Billinger, 9 N.C. App. 573, 575, 176 S.E.2d 901,
903 (1970). In the context of a controlled substance case, “the burden is on the State
to establish the identity of any alleged controlled substance that is the basis of the
prosecution.” State v. Ward, 364 N.C. 133, 147, 694 S.E.2d 738, 747 (2010).
The North Carolina Supreme Court held in Ward 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.” Id. at 147, 694 S.E.2d at
747. The appellant in Ward challenged testimony by an expert in forensic chemistry
who identified the substance in question as a controlled substance based only on a
visual inspection. Id. at 139, 694 S.E.2d at 742-44. The Supreme Court held that the
testimony was “lacking in sufficient credible indicators to support [its] reliability . . .
.” Id. at 144, 694 S.E.2d at 745. In so holding, the Supreme Court rejected the State’s
argument that such a deficiency should only affect the weight the jury assigned to
the testimony. Id. at 147, 694 S.E.2d at 747. “Adopting that view would circumvent
the fundamental issue at stake, that is, the reliability of the evidence, and would risk
a greater number of false positive identifications.” Id. at 147, 694 S.E.2d at 747.
Ward followed State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009),
in which the Supreme Court reversed a majority decision of this Court for “the
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Opinion of the Court
reasons stated in the dissenting opinion,” resulting in a new trial for a defendant
convicted of trafficking based upon the testimony of a law enforcement officer who
visually identified the substance at issue as cocaine. The dissent, adopted by the
Supreme Court, reasoned that by providing “procedures for the admissibility of []
laboratory reports” and “enacting such a technical, scientific definition of cocaine, it
is clear that the General Assembly intended that expert testimony be required to
establish that a substance is in fact a controlled substance.” Llamas-Hernandez, 189
N.C. App. 640, 652, 659 S.E.2d 79, 86-87 (2008), rev’d per curiam, 363 N.C. 8, 673
S.E.2d 658 (Steelman, J., concurring in part and dissenting in part) (citations
omitted).
The Ward and Llamas-Hernandez decisions result in two general rules. First,
the State is required to present either a scientifically valid chemical analysis of the
substance in question or some other sufficiently reliable method of identification. See
State v. Hanif, 228 N.C. App. 207, 212, 743 S.E.2d 690, 693 (2013) (holding that a
trial court committed plain error by allowing testimony about the composition of a
controlled substance based on a visual inspection when such testimony was the only
evidence presented by the State identifying the substance in question); see also State
v. Woodard, 210 N.C. App. 725, 731, 709 S.E.2d 430, 435 (2011) (holding that the
State was not required to conduct a chemical analysis on the substance because the
State’s evidence sufficiently established the identity of the stolen drugs). Second,
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testimony identifying a controlled substance based on visual inspection—whether
presented as expert or lay opinion—is inadmissible. See, e.g., State v. James, 215
N.C. App. 588, 590, 715 S.E.2d 884, 886 (2011) (explaining that an officer’s “visual
identification testimony would be inadmissible because testimony identifying a
controlled substance ‘must be based on a scientifically valid chemical analysis and
not mere visual inspection’ ”) (quoting Ward, 364 N.C. at 142, 694 S.E.2d at 744); see
also State v. Meadows, 201 N.C. App. 707, 712-13, 687 S.E.2d 305, 309 (2010) (holding
that the trial court erred by admitting a police officer’s lay testimony that he
“collected what he believed to be crack cocaine” based on his visual identification of
the substance).
However, the Supreme Court in Ward noted that its decision did not prohibit
law enforcement officers from using visual identification of controlled substances for
investigative purposes. Id. at 147-48, 694 S.E.2d at 747. Nor do we understand Ward
or Llamas-Hernandez to prohibit testimony by an officer regarding visual
identification of a controlled substance for the limited purpose of explaining the
officer’s investigative actions.
Here, Agent Kluttz, throughout his testimony, offered his lay opinion that the
substance in question was crack cocaine. Our precedent prohibits such testimony if
offered as substantive evidence. Because defense counsel did not object to the
testimony, we have no way of knowing whether it was offered to establish the actual
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nature of the substance or merely to explain Agent Kluttz’s subsequent actions in
seizing the substance and arresting Defendant.
More importantly, the State introduced without objection testimony by
McConnell, an expert in forensic testing for the presence or absence of controlled
substances, as well as the results of McConnell’s chemical analysis of the substance
that Agent Kluttz saw drop from Defendant’s person. McConnell testified that her
chemical analysis involved mixing the substance with a reagent, viewing it through
a microscope, and looking for crystals of a unique shape specific to cocaine. Based on
the chemical analysis, McConnell formed the opinion that the substance in the baggie
that fell to the pavement at Defendant’s feet included an ingredient consistent with
the presence of cocaine.
Given the expert testimony in this case based upon a scientifically reliable
method, we cannot conclude that Agent Kluttz’s testimony that he identified the
substance on sight as crack cocaine had a probable impact on the jury’s verdict of
guilt. Accordingly, Defendant has failed to demonstrate prejudice and therefore
failed to establish plain error.
Defendant also argues in passing in his briefs that there were holes in the
procedures surrounding the chain of custody of the substance as it made its way to
the North Carolina State Crime Laboratory for testing. We also recognize that at
trial, Defendant sought to exclude the results of the State Crime Lab analysis by
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filing a motion in limine. However, Defendant does not challenge the trial court’s
admission of those results or the testimony by McConnell, and therefore we accept
her testimony as properly before the trial court.
II. Ineffective Assistance of Counsel
Defendant contends that his constitutional right to effective assistance of
counsel was violated when his trial counsel failed to object to Agent Kluttz’s lay
opinion testimony visually identifying the substance that fell from Defendant as
crack cocaine. We disagree.
Ineffective assistance of counsel claims are usually raised in post-conviction
proceedings and not on direct appeal. See, e.g., State v. Fair, 354 N.C. 131, 166, 557
S.E.2d 500, 524-25 (2001). Such claims may be reviewed on direct appeal when the
cold record reveals that no further factual development is necessary to resolve the
issue. Id. at 166, 557 S.E.2d at 524-25 (citation omitted). The record here is sufficient
to address the ineffective assistance claim, and in the interest of judicial economy we
decide the merits.
To establish that he received ineffective assistance of counsel, a defendant
must show not only that counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment[,]”
but also “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 686-87, 80 L. Ed. 2d 674, 693 (1984). To meet this second
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prong, a “defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694, 80 L.Ed.2d at 698.
Here, in light of the chemical analysis and related expert opinion that the
substance that fell from Defendant’s person had unique chemical properties
consistent with the presence of cocaine, Defendant has failed to establish a reasonable
probability that if his trial counsel had objected, and if the trial court had excluded
Agent Kluttz’s visual identification testimony, the result of the proceeding would
have been different. Accordingly, Defendant’s argument is without merit.1
Conclusion
For the foregoing reasons, we hold that Defendant failed to establish that the
trial court committed plain error by admitting Agent Kluttz’s opinion testimony
identifying the substance that fell from Defendant as cocaine, and that Defendant
was not denied effective assistance of counsel.
NO ERROR.
Judges BRYANT and ZACHARY concur.
1 Because Defendant cannot establish prejudice, we need not consider whether his trial
counsel’s performance was deficient.
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