              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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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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