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.