# State v. Llamas-Hernandez

> Court of Appeals of North Carolina · April 15, 2008 · 189 N.C. App. 640

URL: https://www.frixlaw.com/law-library/cases/9585927

## Case

- **Full name:** State of North Carolina v. Mario Llamas-Hernandez
- **Court:** Court of Appeals of North Carolina
- **Decided:** April 15, 2008
- **Citations:** 189 N.C. App. 640; 659 S.E.2d 79; 2008 N.C. App. LEXIS 714
- **Precedential status:** Published
- **Opinion:** Concurring in part by Steelman
- **Judges:** Stephens, Steelman
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by State v. Llamas-Hernandez, 363 N.C. 8 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9585927

## Opinion text

STEELMAN, Judge,
concurring in part and dissenting in part.
I concur in the portions of the opinion that question the rationale of this Court’s holding under Rule 701 of the North Carolina Rules of Evidence in State v. Freeman, 185 N.C. App. 408 , 648 S.E.2d 876 (2007), and the portions of the opinion pertaining to joinder. I must respectfully dissent to the portions of the opinion allowing a detective to express a lay opinion as to the chemical composition of a white powder and upholding the trial court’s denial of defendant’s motion to dismiss.
Initially, it should be noted that the defendant pled guilty to the Class F offense of trafficking in cocaine and received the mandatory sentence of 70-84 months. The issues involved in this case pertain to the guilty verdict as to the Class G offense of trafficking in cocaine, which was consolidated with the Class F offense for purposes of judgment. Regardless of whether the defendant’s conviction for the Class G offense is upheld or reversed, he will still serve a sentence of 70-84 months imprisonment for the Class F trafficking offense. Nonetheless, under the rationale of State v. Speckman, 326 N.C. 576, 580 , 391 S.E.2d 165, 168 (1990), the consolidation of the two convictions does not render the error of the trial court harmless.
*651 I. Additional Factual and Procedural Background
Detective Olmeda testified in this case that at the Craig Avenue address they found 55 grams of cocaine. Defendant objected to this testimony. While the State elicited testimony as to Olmeda’s experience in undercover drug operations, no testimony was elicited concerning his ability to identify controlled substances by sight.
At the trial of this case, the State sought to offer into evidence a laboratory report concerning 55 grams of white powder. Defendant’s counsel objected, stating that she had requested any such report in discovery, and that she had been told by the district attorney’s office that they would not be testing the smaller amount. As a result, no effort was made by defendant to have the 55 grams of white powder tested. The State acknowledged that the report was not provided, even though the testing was done nine months prior to trial. The trial court excluded the lab report as a discovery sanction pursuant to N.C. Gen. Stat. § 15A-910(a)(3) (2007). Following this ruling, the trial court permitted Detective Whitesel to give a lay opinion concerning the 55 grams of white powder. He testified that in his opinion it was cocaine. No preliminary testing of any kind was performed on the substance. The identification of the 55 grams as being cocaine was based solely upon his visual observations. No testimony was offered as to why he believed that the white powder was cocaine other than his extensive experience in handling drug cases. No testimony was offered as to any distinguishing characteristics of the 55 grams of white powder, such as its taste or texture.
Jennifer Mills, a chemical analyst with the Charlotte-Mecklenburg Police Department, testified that a visual examination of a controlled substance is merely a preliminary test, and is not conclusive.
II. Analysis
Our courts frequently are confronted with cases involving two types of cocaine; powdered cocaine and crack cocaine. Powdered cocaine is a non-descript white powder. Crack cocaine is an off-white pasty substance that comes in small blobs, referred to in street parlance as “rocks.” See generally Blanchard & Chin, Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting Visual Identification of Indescript White Powder in Narcotics Prosecutions, 47 Amer. U. L. Rev. 557 (1998).
*652 A. North Carolina Statutes Dealing With Controlled Substances
Article 5 of Chapter 90 of the North Carolina General Statutes is the North Carolina Controlled Substances Act. A controlled substance is defined as “a drug, substance, or immediate precursor included in Schedules I through VI of this Article.” N.C. Gen. Stat. § 90-87 (5) (2007). The statute then goes on to describe in great chemical detail the substances prohibited in Schedules I through VI. For example, cocaine is described in Schedule II as follows:
Cocaine and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof, or coca leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation of coca leaves, or any salt, isomer, salts of isomers, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocanized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.
N.C. Gen. Stat. § 90-90 (l)(d) (2007). There are different definitions of isomers for different controlled substances. For purposes of cocaine, isomer means “the optical isomer or diastereoisomer.” N.C. Gen. Stat. § 90-87 (14a). Optical isomers are compounds with the same molecular formula but which act in opposite ways on polarized light. See Ducor, New Drug Discovery Technologies and Patents, 22 Rutgers Computer & Tech. L.J. 369 , 379 (footnote 47) (1996). Diastereoisomers are compounds whose molecules are not mirror images but each molecule rotates polarized light. See Strong, FDA Policy and Regulation of Stereoisomers: Paradigm Shift and the Future of Safer, More Effective Drugs, 54 Food Drug L.J. 463 (1999).
By 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. This is how drug cases have been handled and tried in the Superior Courts of this State for many years. Officers gather the evidence, carefully identify it with control numbers and submit it to a laboratory for chemical analysis. If the laboratory testing reveals the presence of a controlled substance, the prosecution of the defendant goes forward. If the laboratory testing reveals that no controlled substance is present, then the case is dismissed by the prosecutor.
The General Assembly has further set forth procedures for the admissibility of such laboratory reports. See N.C. Gen. Stat. *653 § 8-58.20 , 90-95(g) and (gl). N.C. Gen. Stat. § 15A-903 provides that criminal defendants have broad pretrial access to discovery of materials obtained or prepared for the prosecution for use in its case in chief, including “not only conclusory laboratory reports, but also any tests performed or procedures utilized by chemists to reach such conclusions.” State v. Dunn, 154 N.C. App. 1, 8 , 571 S.E.2d 650, 655 (2002) (quotation and emphasis omitted). This is due to “the extraordinarily high probative value generally assigned by jurors to expert testimony . . .” Id. at 6 , 571 S.E.2d at 654 (quotation omitted).
I submit that if it was intended by the General Assembly that an officer could make a visual identification of a controlled substance, then such provisions in the statutes would be unnecessary.
B. Lav Opinion Under Rule 701
The majority relies primarily upon the case of State v. Freeman, 185 N.C. App. 408 , 648 S.E.2d 876 (2007) to support its holding that a law enforcement officer can express a lay opinion under Rule 701 of the North Carolina Rules of Evidence as to the composition of a controlled substance..
1. State v. Freeman
In Freeman , police in Charlotte arrested an armed robbery suspect, who had in his possession what “looked like a pill bottle.’.’ Id. at 411 , 648 S.E.2d at 879 . This container contained a “variety of white pills,” two of which the arresting officer believed to be crack cocaine. Id. at 411 , 648 S.E.2d at 880 . These two items were tested by the Charlotte-Mecklenburg Police Crime Laboratory and found to be cocaine, having a weight of .22 grams. Id.
One of defendant’s assignments of error was that the trial court committed plain error by allowing the officer to testify that the two items seized were crack cocaine. Id. at 414 , 648 S.E.2d at 881 . In light of the lab report confirming that it was cocaine, the admission of the officer’s statement was clearly not plain error. However, this Court went on to hold that it was permissible under Rule 701 for the officer to render an opinion that the substance was cocaine. Id. at 414 , 648 S.E.2d at 882 . In so holding, this Court relied solely upon the case of State v. Bunch, 104 N.C. App. 106 , 408 S.E.2d 191 (1991).
State v. Bunch, supra, held that an officer, based upon his experience, can testify as to common practices of drug dealers. Id. at 110 , 408 S.E.2d at 194 . The testimony dealt with the practice that one per *654 son in a drug deal holds the money, and another holds the drugs. Id. This testimony dealing with custom and practice in drug deals is completely different from an officer testifying as to the chemical composition of a purported controlled substance under Chapter 90 of the General Statutes. Bunch in no way supports the holding of Freeman that an officer can give a lay opinion that a substance is cocaine.
In Freeman, the substance involved was crack cocaine, not powdered cocaine. A review of the opinion, briefs and record in that case does not reveal anything about the appearance of the cocaine other than to describe it as “pills.” Two of the “pills” were distinctive enough from the other pills in the bottle for the arresting officer to immediately identify them as crack cocaine. The appearance of the cocaine in Freeman simply was not a major concern in the case because the laboratory report conclusively established the chemical composition of the substance. Crack cocaine has a distinctive color, texture, and appearance. While it might be permissible, based upon these characteristics, for an officer to render a lay opinion as to crack cocaine, it cannot be permissible to render such an opinion as to a non-descript white powder.
2. Prejudicial Effect
Jennifer Mills only testified as to the similarity of the two packages of powder. Thus the admission of Detective Olmeda’s and Whitesel’s opinion testimony that the 55 grams of white powder was cocaine, over the objection of defendant, was not harmless error.
III. Conclusion
Based upon the evidence presented in this case, there were no distinguishing characteristics of the 55 grams of white powder to support a lay opinion under Rule 701 that the substance was cocaine. Such opinions must be rationally based on the perception of the witness. N.C. Gen. Stat. § 8C-1, Rule 701 (2007). The mere “similarity” of the kilogram of white powder established by laboratory tests to be cocaine to the 55 grams is not sufficient to establish the 55 grams to be cocaine, a controlled substance. I would hold the trial court abused its discretion in allowing lay opinion testimony that the substance was in fact cocaine.
The trial court erred in allowing the lay opinion testimony of the officers that the 55 grams of white powder was cocaine to come before the jury. Without this testimony, there was no evidence before the jury as to the nature of the white powder. The trial court erred in *655 denying defendant’s motion to dismiss the Class G trafficking offense. I would reverse the judgment of the trial court in that case. Since defendant received the mandatory sentence on the Class F trafficking offense, it would be unnecessary to resentence defendant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9585927. Public record. Not legal advice.