Opinion
No. COA09-584.
Filed February 16, 2010.
Onslow County No. 07CRS060103-05.
Appeal by defendant from judgment entered 13 November 2008 by Judge Benjamin G. Alford in Superior Court, Onslow County. Heard in the Court of Appeals 27 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Anne M. Gomez, for Defendant-appellant.
Defendant Marcel Jackson appeals his convictions on drug-related charges arguing, inter alia, that the trial court committed plain error by admitting the results of the NarTest machine and allowing Captain Lewis to testify as an expert. For the reasons given in the recently-decided case of State v. Meadows, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 5, 2010) (No. COA08-1576), we must agree with Defendant and remand for a new trial.
The facts giving rise to this matter tend to show that following the receipt of information from a confidential informant regarding a cocaine transaction, officers from the Onslow County Sheriff's Department set up surveillance that lead to the arrest of Defendant. As a result, Defendant was charged with trafficking in cocaine by possession, by transportation, and by manufacture; possession with intent to manufacture, sell, or deliver cocaine; conspiracy to traffic in cocaine; possession of up to one-half ounce of marijuana; possession of drug paraphernalia; maintaining a dwelling used for keeping and selling controlled substances; and resisting arrest.
At trial, Captain John Lewis, Chief of the Narcotics Unit of the Onslow County Sheriff's Office, testified as an expert in the use of the NarTest analyzer — a device used to determine whether a substance is a controlled substance. He explained the testing process and testified that State's exhibit 18 — the substance seized from Defendant's person — was 13.77 grams of marijuana, and State's exhibit 19 — the substance found in the safe at Defendant's residence — was 27.848 grams of powder cocaine. Captain Lewis testified that State's exhibit 24 — a bag seized during the investigation in this matter — contained 223.762 grams of cocaine. The large plastic bag contained five smaller bags, State's exhibits 25-29. Tests of State's exhibit 25 proved negative for controlled substances, but the white powdery substance was consistent with the appearance of Inositol — a substance used as a cutting agent for cocaine. The remaining bags contained cocaine in the amount of approximately 55 grams each.
The trial court dismissed the resisting arrest charge at the close of State's evidence. Defendant put on no evidence at trial. The jury found Defendant not guilty of maintaining a dwelling and trafficking by transportation, but guilty of the other charges. This appeal followed.
For the reasons given in State v. Meadows, we must agree with Defendant's argument that the trial court erred by (1) allowing Captain Lewis to testify as an expert and (2) admitting the results of the NarTest machine.
In State v. Meadows, this Court considered a challenge to the expert opinion of the same Captain Lewis regarding the results of the same kind of chemical analysis, the NarTest machine. Meadows, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 5, 2010) (No. COA08-1576). This Court applied the three-step analysis of Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004), to the limited evidence presented by the State of the methodology in question.
The Court noted that:
The State did not present any evidence which would indicate that the NarTest machine uses an "established technique[,]" . . . for analysis of controlled substances or that the NarTest machine has been recognized by experts in the field of chemical analysis of controlled substances as a reliable testing method.
Furthermore, Captain Lewis did not testify as to any other testing methods currently used to identify controlled substances and how the NarTest machine compares with those methods. During the trial, Captain Lewis admitted he had absolutely no evidence that the Nartest machine was even accurate beyond the fact that the NarTest laboratory confirmed his NarTest machine results.
Meadows, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 5, 2010) (No. COA08-1576) (citation omitted). Although Captain Lewis has been trained in the operation of the NarTest machine, he is "not a chemist by trade . . . and was not aware of the chemical makeup of cocaine." Id. at ___, ___ S.E.2d ___ (internal quotations omitted). Furthermore, no North Carolina Agency issues any sort of certification in the use of the NarTest machine. Id. at ___, ___ S.E.2d at ___. Thus, Captain Lewis "has no `professional background' in the field of chemical analysis of controlled substances." Id. at ___, ___ S.E.2d ___. Meadows does not hold that the Nartest machine is unreliable absolutely, only that the State failed to establish its reliability with the testimony of Captain Lewis alone.
Captain Lewis's testimony in the present case was similar to his testimony in Meadows, and did not add substantially to the determination of the reliability of his method. He testified that he attended a week-long course conducted by the manufacturers and trainers of the NarTest instrument and has returned on two separate occasions for follow-up training. He testified that he had used the instrument approximately 400 times, that he found the device to be reliable, and that he has previously been accepted as an expert witness in the use of the device.
Captain Lewis explained on direct examination the steps that he takes to prepare a substance for testing, but as far as the chemical test itself, he testified only that, "[t]he instrument runs the test, and then it comes — once the test is complete, I print off the results." On cross-examination, Captain Lewis testified "I test that minute amount and, if that minute amount comes back positive, then I am very certain that the rest of the bag contains whatever substance [the NarTest] says it is."
Defendant argues that the NarTest was not sufficiently reliable as an area for expert testimony. Defendant claims there was no evidence introduced that the device has been accepted by the scientific community as an accurate way to test for controlled substances, but that the jury was asked to accept on faith the results. Defendant points out that Captain Lewis did not testify to any independent research or use visual aids, nor did he explain how the machine works. If the method of testing the suspected substances was unreliable, it follows that Defendant was prejudiced by the admission of Captain Lewis's testimony.
The State replies that the indicia of reliability catalogued in Howerton are explicitly "nonexclusive," and that Captain Lewis's testimony regarding his familiarity with the machine "was sufficient for the trial court to rule, in its discretion, that the NarTest machine was sufficiently reliable." The State argues further that even if admission of the evidence was erroneous, Defendant cannot demonstrate, under a plain error analysis, that the result of his trial would have been different. This is because while Defendant waited in a room at the Sheriff's Office with his co-defendant, Defendant spoke to his co-defendant Pope and a detective about the cocaine found. The State further contends that there is moreover an "obvious inference" to be drawn from Defendant's attempt to conceal the substance that the evidence seized was in fact cocaine.
We are not prepared to indulge in the inferences of guilt that the State recommends. To do so would endanger every defendant's long recognized presumption of innocence. See Coffin v. United States, 156 U.S. 432, 453, 39 L. Ed. 481, 491 (1895). At the same time, we respect the enormity of discovering plain error in the trial court's admission of this evidence, and we do not hereby depart from the belief that the plain error rule applies only in truly exceptional cases. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
We cannot disagree however with Defendant's assertion that Captain Lewis's improper opinion testimony that the suspected substances were marijuana and cocaine was critical to the State's case. Our courts have elsewhere recognized that the identification of controlled substances by law enforcement must be conducted according to approved methods. See State v. Ward, ___ N.C. App. ___, 681 S.E.2d 354, disc. review allowed, ___ N.C. ___, 686 S.E.2d 153 (2009); State v. Llamas-Hernandez, 189 N.C. App. 640, 659 S.E.2d 79 (2008)(Steelman, J., dissenting), rev'd per curiam, 363 N.C. 8, 673 S.E.2d 658 (2009) (adopting J. Steelman's dissent). Meadows established that based on nearly the same testimony from the same witness, the trial court erred in admitting the results of the NarTest machine. To hold otherwise in this case would create an inconsistency with Meadows, and subject our own jurisprudence to an objection of unreliability.
Because the jury probably would have reached a different result without Captain Lewis's testimony regarding the NarTest chemical analysis, Defendant's conviction must be set aside and this matter is remanded for a new trial. We emphasize that our holding is a limited one. We decide today only that the trial court erred in admitting the Nartest results without sufficient evidence of the testing method's reliability. On remand, the State is not precluded from presenting admissible evidence, if such can be obtained, that the substances alleged to be contraband in this case, are in fact what the State believes them to be. This evidence could include the results of any chemical analysis conducted according to previously authorized methods.
NEW TRIAL
Judge McGEE and Judge BRYANT concur.
Report per Rule 30(e).