State v. Board

Justice BROCK

dissenting.

The majority dismisses these charges against the defendant because no witness testified that MDA was in fact an abbreviation for 3, 4-methylenedioxyamphetamine. The majority then *660 reasons that testimony that defendant possessed and delivered MDA “does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylene-dioxyamphetamine as charged in the bills of indictment.”

I disagree with the majority opinion for what I consider to be two substantial reasons.

First: The Courts are not required nor expected to be more blind than other segments of society to facts which are commonly known or to facts which are readily verifiable. “Many facts . . .. are so indisputable, and so generally known or so readily verifiable that it would be a waste of time and a perversion of the judicial function to require them to be proved. A court will take judicial notice of facts of this character, i.e., it will assume or declare them to exist without requiring the production of evidence to establish them.” 1 Stansbury’s North Carolina Evidence, Judicial Notice, § 11, p. 24 (Brandis Rev. 1973). Drug Laws of North Carolina (Including Regulations) issued by North Carolina Drug Authority (now North Carolina Drug Commission) sets out on page 121 the Common or Trade Name for the Statutory or Legal name of Schedule 1 Controlled Substances. MDA is listed as the Common or Trade Name for 3, 4-methylenedioxyam-phetamine. This source is readily available and the abbreviation is readily verifiable. The trial judge took judicial notice of this fact when he instructed the jury as follows:

“Now, the defendant in these cases has been accused of possession of methylenedioxyamphetamine, a controlled substance, with the intent to sell it, and sale of this same controlled substance. Now, for the purposes of clarification, I will refer to that alleged substance by the term, MDA, which is the common way that it is referred to. It is the common abbreviation for the controlled substance, methylenedioxyam-phetamine. In these instructions, when I use the abbreviations MDA, you will know that that is the alleged substance to which I refer.”

The State’s witnesses, the district attorney, counsel for defendant, and the defendant himself referred to the drug as MDA. No objection or exception was taken by the defendant to the trial judge’s taking notice, and instructing the jury, that MDA was the common abbreviation for 3, 4-methylenedioxyamphet- *661 amine. If defendant had objected, I think it would have been without merit. But the point is that defendant himself is satisfied with the trial judge’s action in this regard. For this Court to say the evidence of defendant’s possession and delivery of MDA does not constitute substantial evidence that the drug possessed and sold by defendant was in fact 3, 4-methylenedioxyamphetamine is tantamount to saying that the trial judge abused his discretion in judicially noticing this fact. In my opinion the trial judge was correct.

Second: The primary argument of defendant, both in the Court of Appeals and in this Court, is that the evidence establishes entrapment as a matter of law. At no point does defendant argue that the evidence that he possessed and delivered MDA does not constitute substantial evidence that he sold and delivered 3, 4-methylenedioxyamphetamine as charged in the bills of indictment. He, in effect, took notice of that fact himself.