Pubdate: Tue, 22 Jun 2010 Source: Star-News (Wilmington, NC) Copyright: 2010 Wilmington Morning Star Contact: http://www.starnewsonline.com/section/submit01 Website: http://www.starnewsonline.com/ Details: http://www.mapinc.org/media/500 Author: Veronica Gonzalez Referenced: The ruling http://www.aoc.state.nc.us/www/public/sc/opinions/2010/pdf/365PA09-1.pdf STATE SUPREME COURT RULES EYEBALLING NOT ENOUGH PROOF FOR DRUG EVIDENCE The state Supreme Court has ruled that an expert witnesses' visual identification of prescription drugs was insufficient to prove their substance and should not have been allowed in a New Hanover County man's trial. But the court's ruling on Thursday was not unanimous, and in a dissenting opinion, Justice Paul Newby writes that the decision changes the law significantly as it pertains to witness testimony. The opinion, which affirms an appellate court's decision, stems from the case of Jimmy Waylon Ward, who was convicted on Jan. 14, 2008, of drug-related felony offenses, including opium trafficking, after an SBI agent testified that out of hundreds of pills seized from Ward's home and car, only about half of them were actually tested by the crime lab. Even so, Ward, 70, was sentenced to nearly a decade in prison. "It's going to require the state to use science to convict people rather than visual ID," said Ward's appellate attorney, Paul Herzog on Monday. "What they're doing, I could do it. It doesn't take expertise. Anybody could do it. Just looking at something is not science." Ward was arrested after New Hanover County Sheriff's Office narcotics detectives participated in an undercover buy with him on Aug. 22, 2006 at the Carolina Beach Exxon station in which 30 blue oval-shaped pills were purchased for $180, according to the opinion written by Justice Edward Thomas Brady for six of the seven justices. The undercover deal allowed detectives to search Ward's car and home where they found prescription pill bottles in his name and his cousin's name that were labeled Hydrocodone and Xanax. They also found unlabeled pills stored in a plastic cup and a bank envelope and more than $1,500 in cash, the opinion states. At Ward's trial, SBI Special Agent Irvin Lee Allcox testified when he tested everything from Ward's car and home, he identified three pain medications with opium derivatives as well as cocaine, Amphetamine, Xanax, Valium, and Ritalin. The agent testified that he only tested about half the pills because of limited resources in the crime lab. The rest he identified by looking them up in a medical publication used by doctors and pharmacists. The court described the agent's techniques as "cutting corners." Additionally, the agent testified the SBI routinely only tested drugs that would net a felony conviction while other drugs that would result in a misdemeanor conviction were of a lower priority so they were typically only identified visually. "There is little evidence in the record either implying that identification of controlled substances by mere visual inspection is scientifically reliable or suggesting that Special Agent Allcox's particular methodology was uniquely reliable," the court ruled. "His testimony is completely devoid of any scientific data or demonstration of the reliability of his methodology." The court noted that although the agent had an impressive background in chemistry and had considerable experience, he lacked a pharmaceutical degree. "... There is little indication in the record that Special Agent Allcox was better qualified to visually identify a tablet than the average juror with ordinary perceptive abilities who, if called upon, could compare a tablet to a photograph and other descriptive literature," the court wrote. Newby wrote in his dissenting opinion that "the majority's approach alters the law of this state as it pertains to the admission of expert opinion testimony" and altered the threshold for allowing expert testimony. He argued the SBI agent had two science degrees and more than 34 years professional experience analyzing and investigating drugs. Newby wrote the majority's ruling "expressly limits the manner in which an expert may arrive at his or her opinion, in direct contradiction of this Court's statements." But the court stated in its decision that the ruling should lead to more fair trials. "Ultimately, the State is better served by identifying perpetrators with reliable evidence and reducing the likelihood that convictions rest on inaccurate data," according to the opinion. Herzog said the ruling establishes good precedent. "Looking at something in a book, it's junk science," he said. - --- MAP posted-by: Richard Lake