No.COA10-247 TWENTY-EIGHTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

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v.)From Buncombe

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RHONDA JEAN HICKS)

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BRIEF OF DEFENDANT-APPELLANT

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QUESTIONS PRESENTED

I.WHETHER THE TRIAL COURT PLAINLY ERRED BY ALLOWING THE STATE’S EXPERT WITNESS TO TESTIFY THAT ALL 100 PILLS POSSESSED BY MS. HICKS CONTAINED AN OPIUM DERIVATIVE WHERE THE EXPERT BASED HIS OPINION ON AN UNRELIABLE VISUAL IDENTIFICATION OF THE PILLS AND PERFORMED AN INSTRUMENTAL ANALYSIS OF ONLY ONE OUT OF THE 100 PILLS, RATHER THAN A RANDOM SAMPLE, AND EXTRAPOLATED THAT ALL 100 PILLS CONTAINED THE SAME OPIUM DERIVATIVE DESPITE HIS FAILURE TO TESTIFY THAT All 100 PILLS WERE IDENTICAL?

II. WHETHER THE TRIAL COURT PLAINLY ERRED BY ADMITTING EVIDENCE THAT VIALS CONTAINING AN UNIDENTIFIED CLEAR LIQUID AND A SYRINGE WERE FOUND IN MS. HICKS’ CAR AND PURSE WHEN THE EVIDENCE HAD NO TENDENCY TO PROVE ANY FACT IN ISSUE AT MS. HICKS’ TRIAL FOR TRAFFICKING IN AN OPIUM DERIVATIVE?WHETHER THE EVIDENCE WAS PREJUDICIAL, UNDERMINED THE FAIRNESS OF THE TRIAL, AND HAD A PROBABLE IMPACTON THE JURY’S VERDICTS BECAUSE IT SUGGESTED THAT MS. HICKS ILLICITLY INJECTED THE PILLS?

STATEMENT OF THE CASE

On 6July 2009, theBuncombe County Grand Jury indicted Ms. Hicks for trafficking in opium/heroin by possession and transportation, carrying a concealed weapon, resisting a public officer, and aiding and abetting the possession of a firearm by a felon, which charge the State then dismissed. (R p 9-17)[1] Ms. Hicks filed a motion in limine to exclude evidence (R p 21-23) andtrial commenced at the 5 October 2009 Criminal Session of Superior Court, Buncombe County, the Honorable Alan Z. Thornburg presiding. The court denied the motion as to blue vials with clear liquid found in Ms. Hicks’ car and a syringe found in her purse, but granted it as to pills found on her co-defendant Frankie Orr. Ms. Hicks pled guilty to carrying a concealed weapon. (Vol. IT p 8-9) The jury acquitted Ms. Hicks of resisting a public officer and found her guilty on the trafficking charges. The court sentenced Ms. Hicks to concurrent terms of 225 to 279 months for trafficking and a concurrent term of 60 days for carrying a concealed weapon. (R p 41-46) Ms. Hicks gave oral notice of appeal. (R p 49; Vol. IIT p 124)

STATEMENT OF GROUNDS FOR APPELLATE JURISDICTION

The ground for review is a final judgment of the Superior Court under N.C. Gen. Stat. §15A-1444(a).

STATEMENT OF THE FACTS

On 28 January 2009, Corporal Ben Jaramillo was on patrol when he received a report that amale suspectwas refusing to leave a house and brandishing a gun. Corporal Jaramillo also received a description of the suspect’s car. While en route to the scene, he passed a car matching the description and stopped it at a McDonald’s restaurant. Corporal Jaramillo pulled alongside the driver’s side and walked up to the driver’s door. Officer Dean Hannah pulled directly behind the suspect’s vehicle and walked up to the passenger side. (Vol. ITp 26-30)

The officers approached the car cautiously because they were advised that the male passenger had a gun. Corporal Jaramillo recognized the male passenger as Frankie Orr. Corporal Jaramillo asked the driver, Ms. Rhonda Jean Hicks, for her license and registration, and Ms. Hicks complied. When Corporal Jaramillo asked Ms. Hicks where the gun was, Ms. Hicks said there were no guns in the car and became argumentative. The officers removed Ms. Hicks and Frankie Orr from the car. Corporal Jaramillo again asked Ms. Hicks where the gun was, and Ms. Hicks replied that it was in her purse. (Vol. IT p 29-32)

Corporal Jaramillo found a purse on the floorboard in front of the driver’s seat. It contained a firearm, a pill bottle containing 100 pills, and a syringe. (Vol. IT p 33) Corporal Jaramillo also found three blue vials, one of which was empty and two of which contained clear liquid, in the center console. (Vol. IT p 37, 49-50) All three blue vials had Frankie Orr’s name on them. (Vol. IT p 38, 41) The officers arrested Ms. Hicks and Frankie Orr. (Vol. IT p 40)

According to North Carolina State Bureau of Investigation forensic chemist Brad Casanova, the clear liquid in the blue vials did not contain any controlled substances. Mr. Casanova did not identify the substance in the vials. (Vol. IT p 50; State’s Exh. 4) The State introduced the vials, over objection, as State’s Exhibit 3. (Vol. IT p 38) The State did not put on evidence that Mr. Casanova tested the syringe for the presence of any substances. (Vol. IT p 47-51, 54)

On direct examination, Mr. Casanova testified that the 100 pills found in Ms. Hicks’ purse contained dihydrocodeinone, commonly known has hydrocodone, which is a Schedule III pharmaceutically prepared opiate. Mr. Casanova testified that the pills weighed 51.4 grams. (Vol. ITp 50-51) The State introduced Mr. Casanova’s laboratory report as State’s Exhibit 4.[2]

On cross-examination, Mr. Casanova testified regarding the methodology of his testing:

First, I performed a pill identification which consists of looking at the markings, shape, color of the tablet and referencing it against a data base of pharmaceutical preparations. After that, I determined it was probably hydrocodone. I performed an appropriate extraction on the tablet, removing the drug and ran it on a GCMS, gas chromatograph, and that is an instrumental analysis which basically breaks down the components of the tablet and allows each one to be identified. (Vol. IT p 52)

Mr. Casanova clarified that he preliminarily examined each pill but examined only one pill by instrumental analysis. When asked for the amount of hydrocodone in each pill, Mr. Casanova testified that “[t]he database I referenced for the pill identification indicated there were 7.5 milligrams of hydrocodone in each tablet,” for a total of three quarters of a gram of hydrocodone in all 100 pills. (Vol. IT p 53)

Officer Hannah testified that he saw the pills removed from Ms. Hicks’ purse and the three blue vialsin the center console. He also testified that he had made a lot of drug stops. The prosecutor then asked, “Based on your training and experience as a law enforcement officer of five years, do you know why somebody would have the drugs that were found, a syringe and clear liquid? Why would somebody have the clear liquid?” Trial counsel objected. (Vol. IT p 57)

Outside the presence of the jury, the prosecutor argued that Officer Hannah would testify

to a simple fact that people with a syringe and prescription medication, obviously they use a syringe to inject it into their body. They can’t just inject a chalky substance. I believe this officer would testify it’s very common to find a clear liquid that’s used to dilute the matter so that it could be injected. (Vol. IT p 58)

Trial counsel argued that the State did not identify the clear liquid and that Officer Hannah’s testimony would confuse the issues and shift the burden from the State to the defense. The trial court sustained the objection. (Vol. IT p 59-60)

John Crawford, a pharmacist, testified for the defense that he received a prescription for Vicodin, a brand name drug containing hydrocodone, for Ms. Hicks from Dr. Donald Mullins. Mr. Crawford filled the prescription with a generic form of hydrocodone on 12 June 2008. Mr. Crawford also testified that Ms. Hicks received refills pursuant to the prescription four other times from July through November 2008 for a total of 150 pills. Dr. Crawford testified that the 100 pills Ms. Hicks had on 28 January 2009 were not the pills he disbursed under the prescription from Dr. Mullins. (Vol. IT p 67-74, 75)

Ms. Hicks testified on her own behalf that she was 48 years old and had three slipped discs and one broken disc in her back. She was in a lot of pain and went to see Dr. Mullins for her pain. (Vol. IT p 77) Ms. Hicks testified that over the course of two years she had prescriptions filled at four pharmacies, including Mr. Crawford’s pharmacy. (Vol. IT p 78) Ms. Hicks testified that she had a prescription for the pills she possessed on 28 January 2009. When asked where it was, she said that she did not know, and she would have to get another printout from one of the pharmacies. (Vol. IT p 82-83)

Ms. Hicks testified that she initially took three Vicodin pills per day, but Dr. Mullins then prescribed morphine, which was stronger and more effective. At that point, the Vicodin pills started piling up, but Ms. Hicks continued to take Vicodin when her pain persisted despite the morphine. When asked why she continued to get her Vicodin prescriptions filled, Ms. Hicks testified that she filled them “[s]o I would have them when I needed them. I can’t afford to go to the doctor all the time.” (Vol. IT p 78-80)

Ms. Hicks also testified that she had her Vicodin pills in two or three separate bottles, but then consolidated them into the one bottle she had on 28 January 2009. When the prosecutor asked her why she had “a syringe along with those,” Ms. Hicks testified that she had a diabetic friend who frequently rode in her car. She testified that he left the syringe in her car and she put it in her purse to throw away. (Vol. IT p 83)

ARGUMENT

I.THE TRIAL COURT PLAINLY ERRED BY ALLOWING THE STATE’S EXPERT WITNESS TO TESTIFY THAT All 100 PILLS POSSESSED BY MS. HICKS CONTAINED AN OPIUM DERIVATIVE WHERE THE EXPERT BASED HIS OPINION ON AN UNRELIABLE VISUAL IDENTIFICATION OF THE PILLS AND PERFORMED AN INSTRUMENTAL ANALYSIS OF ONLY ONE OUT OF THE 100 PILLS, RATHER THAN A RANDOM SAMPLE, AND EXTRAPOLATED THAT ALL 100 PILLS CONTAINED THE SAME OPIUM DERIVATIVE DESPITE HIS FAILURE TO TESTIFY THAT All 100 PILLS WERE IDENTICAL.

Standard of Review:

Plain error applies where the defendant did not object to the admission of evidence, State v. Couser, 163 N.C. App. 727, 730, 594 S.E.2d 420, 423 (2004), and results “where the error is sofundamental that it undermines the fairness of the trial, or whereit had a probable impact on the guilty verdict.” State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002).

Argument:

Expert testimony identifying alleged prescription medications as controlled substances based solely upon a visual examination is unreliable and inadmissible under Rule 702. State v. Ward, ___ N.C. App. ___, ___, 681 S.E.2d 354, 372-373, disc. review allowed, 363 N.C. 662, 686 S.E.2d 153 (2009); see N.C. Gen. Stat. §8C-1, Rule 702. Where an expert’s opinion that an item is a controlled substance otherwise lacks a sufficiently reliable basis, it is also inadmissible. State v. Meadows, ___ N.C. App. ___, ___, 687 S.E.2d 305, 309, stay granted, 363 N.C. 809 (2010). Here, Mr. Casanova testified that all 100 pills were “probably hydrocodone” based upon a comparison of the markings, shape, and color of the tablets to an unidentified “database of pharmaceutical preparations.” Mr. Casanova also performed an instrumental analysis of only one of the pills, rather than a random sample, and extrapolated that all 100 pills contained hydrocodone despite his failure to testify that all ofthe pills were identical in appearance. Mr. Casanova’s expert opinion, based upon unreliable methods of proof, was inadmissible. As it served as the only evidence that all 100 pills contained a controlled substance, its erroneous admission probably affected the jury’s verdict.

In Ward, an expert in forensic chemistryidentified several alleged prescription medications as controlled substances through “a visual examination of the appearance of and pharmaceutical markings on the medications in question and a comparison of the information derived from that process to information contained in the Micromedics Literature.” Ward, ___ N.C. App. at ___, 681 S.E.2d at 369. This Court held that the visual identification procedure employed “d[id] not provide adequate ‘indices of reliability’ sufficient to support the admission of expert testimony.” Id. at ___, 681 S.E.2d at 373.

Initially,this Court held that because the Schedule II and IV controlled substances at issue were statutorily defined in “‘technical, scientific’ ways,” existing precedent suggested that“identification testimony should rest on a chemical analysis rather than visual identification.” Ward, ___ N.C. App. at ___, 681 S.E.2d at 372. Thus, this Court held that “the visual identification procedure employed by Special Agent Allcox, as explained in his expert testimony, is inconsistent with existing precedent.” Id. at ___, 681 S.E.2d at 372. Likewise, because the Schedule III controlled substance at issue here, dihydrocodeinone, is statutorily defined in a technical, scientific way, N.C. Gen. Stat. §90-91(d), Mr. Casanova’s visual identification procedure contravened existing precedent.

Because this Court determined that existing precedent did not “directly address the proper manner in which to identify prescription medications[,]” this Court examined the nonexclusive “indices of reliability” articulated by our Supreme Court: “‘[T]he expert’s use of established techniques, the expert’s professional background in the field, the use of visual aids before the jury so that the jury is not asked ‘to sacrifice its independence by accepting [the] scientific hypotheses on faith,’ and independent research conducted by the expert.’” Id. at ___, 681 S.E.2d at 372 (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 460, 597 S.E.2d 674, 687 (2004)).

As to the indices of reliability, this Court held that “the record does not contain any information tending to show that Special Agent Allcox received any sort of specialized training in the use of Micromedics Literature to identify particular medications.” Id. at ___, 681 S.E.2d at 372. Here, Mr. Casanova did not even identify the database utilized, let alone testify as to whether he received any training in its use. (Vol. IT p 52)

The Court also held that “except for Special Agent Allcox’s claim to be able to recognize counterfeit controlled substances, the record contains no indication of the degree to which the approach adopted by Special Agent Allcox is a reliable one.” Id. at ___, 681 S.E.2d at 372-73. Additionally, “Special Agent Allcox did not provide any testimony addressing the reliability of the methodology that he employed.” Id. at ___, 681 S.E.2d at 373. This Court further recognized the prevalence of counterfeit drugs, id. at ___, 681 S.E.2d at 373 (citing Robert C. Bird, Symposium: Counterfeit Drugs: A Global Consumer Perspective, 8 Wake Forest Intell. Prop. L.J. 387, 389 (2008) (stating that “[t]he World Health Organization estimates that up to 60% of drugs sold in developing countries and up to20% sold in developed countries are counterfeit”)), and concluded that it was “troubled by the significant risk of misidentification that appears to be inherent in the methodology employed by Special Agent Allcox.” Id. at ___, 681 S.E.2d at 373.

This Court concluded that the trial court abused its discretion by admitting the challenged testimony. It further held that given the importance and centrality of the visual identifications, “the trial court’s error in those cases prejudiced [the] Defendant’s chances for a more favorable outcome.” Id. at ___, 681 S.E.2d at 373.

Here, the State also did not establish the reliability of Mr. Casanova’s visual inspection method. Moreover, Mr. Casanova did not even claim to have the ability to identify counterfeit controlled substances. Given the prevalence of counterfeit drugs, and Mr. Casanova’s failure even to establish that all of the pills were identical, Mr. Casanova’s visual inspection method was unreliable.

While Mr. Casanova’s opinion also was based in part on a chemical analysis of one pill, his extrapolation of the contents of all 100 pills from the chemical composition of only onepill also lacked sufficient reliability. “Our Courts have held that ‘[w]hen a random sample from a quantity of tablets or capsules identical in appearance is analyzed and is found to contain contraband, the entire quantity may be introduced as the contraband.’” State v. Myers, 61 N.C. App. 554, 556, 301 S.E.2d 401, 402 (1983) (emphases added) (citingState v. Wilhelm, 59 N.C. App. 298, 303, 296 S.E.2d 664, 667 (1982); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970); State v. Absher, 34 N.C. App. 197, 237 S.E. 2d 749 (1977)).

Here, Mr. Casanova did not test a random sample of the pills, buttested only one. (Vol. IT p 53) Furthermore, Mr. Casanova never testified that all 100 pills were identical. He merely testified that he examined the “markings, shape, [and] color of the tablet[s],” and after referencing an unknown database determined they were“probably hydrocodone.” (Vol. IT p 52) Mr. Casanova’s failure to testify that the pills were identical was striking, especially considering that the pills were in an unmarked bottle and, according to Ms. Hicks, originated from two or three separate pill bottles potentially prescribed and disbursed at different times. (Vol. IT p 83) Mr. Casanova’s conclusory laboratory report furnished no further support for his opinion. (App. 8)

In Riera, the expert randomly tested “some of the capsules” and the remaining capsules were “all identical in coloration, each had an identical code number -- ‘Lilly F65’ -- impressed upon it, and the code number indicated that it contained Tuinal, the brand name adopted by the Eli Lilly Company for its product containing component parts identical to those found ... in the capsules tested.” Riera, 276 N.C. at 366, 172 S.E.2d at 539. In Myers, the expert “examined the tablets to make sure that they all had the same physical characteristics” and chemically tested “twenty tablets at random[.]” Myers, 61 N.C. App. at 556, 301 S.E.2d at 402. In Wilhelm, while the expert tested only three pills from a total of three bags of pills, he testified that “each bag contained uniform, identical tablets, although the tablets in Exhibit 2 were unlike the tablets in Exhibits 1 and 3.” Wilhelm, 59 N.C. App. at 303, 296 S.E.2d at 667. Finally, in Absher, the expert randomly selected five of the tablets and “testified that he examined all of the tablets and that they appeared identical to him.” Absher, 34 N.C. App. at 200-201, 237 S.E. 2d at 752.

The records supporting the admissibility of the experts’ opinions in those cases stand in stark contrast to the record here. Mr. Casanova’s methods of proof simply were not “‘sufficiently reliable as an area for expert testimony[.]’” Meadows, ___ N.C. App. at ___, 687 S.E.2d at 309 (quoting Howerton, 358 N.C. at 458-460, 597 S.E.2d at 686-687).

In Meadows, this Court held that “[a]s the NarTest machine results and [the] visual identification were the only evidence that [the] defendant possessed cocaine and as both were admitted erroneously, [the] defendant was prejudiced and must receive a new trial.” Id. at ___, 687 S.E.2d at 309 (emphasis in original). In State v. Jackson, this Court held that admission of an expert opinion based upon results from the NarTest device amounted to plain error. State v. Jackson, No. COA09-584, 2010 N.C. App. LEXIS 300 (Feb. 16, 2010) (unpublished) (App. 1-7). Likewise, the admission ofMr. Casanova’s expert opinion, based upon unreliable methods of proof,constituted plain error. Without Mr. Casanova’s expert testimony that all 100 pills contained dihydrocodeinone, the State proved only that one of the pills contained an opium derivative, and thus did not establish the amount required for trafficking, §90-95(h)(4), entitling Ms. Hicks to a new trial. Jackson, No. COA09-584, 2010 N.C. App. LEXIS 300 (Appendix); State v. Couser, 163 N.C. App. 727, 730-731, 594 S.E.2d 420, 423-424 (2004).