Is fentanyl an opiate? That’s the query the prosecutor requested a witness in State v Gibbs. The trial courtroom overruled the defendant’s objection, and the witness was permitted to testify that fentanyl was each an opioid and an opiate. In an unpublished opinion (“Gibbs I”), the Court docket of Appeals dominated this was error, reversing a conviction for trafficking by possession. Our Supreme Court docket then reversed the Court docket of Appeals. In a concise, per curiam opinion, our Supreme Court docket declared that whether or not fentanyl is an opiate is a query of legislation, and it remanded for reconsideration. In a subsequent unpublished opinion (“Gibbs II”), the Court docket of Appeals decided that fentanyl is an opiate as a matter of legislation. Reasoning that there was no want for an knowledgeable witness to testify on the problem, the Court docket of Appeals concluded that there was no error within the defendant’s conviction for trafficking. After all, whether or not such testimony is vital doesn’t resolve whether or not this specific proof was admissible. Gibbs is an proof case, however the rule it illustrates is elusive. This publish examines Gibbs to determine whether or not the prosecutor requested a permissible query.
A. Classification of fentanyl.
Opium “is a pure substance extracted from the unripe seed pods of the opium poppy, papaver somniferum.” State v. Garrett, 277 N.C. App. 493, 497–98, 860 S.E.2nd 282, 286, disc. overview denied, __ N.C. __, 860 S.E.2nd 916 (2021). “Opiates” are outlined as pure analgesic medication derived from opium, e.g., heroin, morphine, and codeine, whereas “opioids” are a class of medication both partially or wholly artificial, designed to imitate the results of opium. Id. at 498, 860 S.E.2nd at 286. Fentanyl is wholly artifical with no pure parts, therefore an opioid. Id. These definitions usually are not, nonetheless, common, and “there may be important variation and overlap.” Id.
My colleague Phil Dixon has posted beforehand about easy possession of fentanyl. As he famous, fentanyl is classed as a Schedule II managed substance. N.C.G.S. § 90-90(2)(h). (The related statutes have not too long ago been amended to make clear the criminalization of fentanyl.) Related to Gibbs, Part 90-90 was amended in July 2017. The record of managed substances together with fentanyl didn’t change, however whereas it beforehand encompassed “the next opiates,” it subsequently encompassed “the next opiates or opioids.” Examine N.C.G.S. § 90-90(2) (2015), with id. (2019). The defendant’s convictions in Gibbs included possession with intent to promote or ship a Schedule II managed substance, i.e., fentanyl. That cost was not at difficulty.
Fairly, the defendant in Gibbs challenged his conviction for trafficking in “opium or opiate” beneath Part 90-95(h)(4), which at the moment didn’t embody the time period “opioid.” See N.C.G.S. § 90-95(h)(4) (2017). Opiate is outlined by statute as any substance having an addiction-forming or addiction-sustaining legal responsibility much like morphine or being able to conversion right into a drug with such qualities. N.C.G.S. § 90-87(18) (2017). Opioid is outlined as any artificial narcotic drug having opiate-like actions however isn’t derived from opium. N.C.G.S. § 90-87(18a) (2017).
In Garrett, the Court docket of Appeals had beforehand held that fentanyl qualifies as an opiate beneath Part 90-95(h)(4). As our Supreme Court docket famous, nonetheless, “Garrett concerned the model of the trafficking statute that was in place in 2016, which didn’t acknowledge opioids as a category of managed substances and listed fentanyl as an opiate.” State v. Gibbs, 384 N.C. 654, 655, 877 S.E.2nd 846, 847 (2023). Whereas Gibbs I was pending, the Court docket of Appeals allowed supplemental briefing on the impact of Garrett. See 5/28/21 order in Case No. COA20-591. In Gibbs I, it in the end distinguished Garrett, explaining that the dispositive difficulty in that case was whether or not the indictment was faulty, not whether or not a witness was certified to opine that fentanyl is an opiate. State v. Gibbs, No. COA20-591, Slip Op. p. 9 n.2 (N.C. Ct. App. Nov. 2, 2021) (unpublished).
B. Qualification of an knowledgeable.
The qualification of knowledgeable witnesses is ruled by Proof Rule 702. “If scientific, technical or different specialised information will help the trier of truth to grasp the proof or to find out a truth in difficulty, a witness certified as an knowledgeable by information, talent, expertise, coaching, or schooling, could testify thereto within the type of an opinion.” N.C.G.S. § 8C-1, Rule 702. The Rule was amended in 2011, adopting the federal customary for the admission of knowledgeable testimony, and making North Carolina a Daubert state. See State v. McGrady, 368 N.C. 880, 884, 787 S.E.2nd 1, 5 (2016). The rule has three components, every of which should be glad earlier than knowledgeable testimony is admissible: (1) the proof should be related, (2) the witness should be certified, and (3) the testimony should be dependable. As for the witness’s qualification, the rule doesn’t require the witness to have any specific diploma or certification, however the trial courtroom could contemplate such indices of experience. In any occasion, “the trial courtroom has the discretion to find out whether or not the witness is sufficiently certified to testify.” Id. at 889-90, 787 S.E.2nd at 8-9.
In Gibbs, the defendant was approached by police and fled, abandoning a backpack. Contained in the backpack, officers discovered a white powdery substance together with identification playing cards and items of mail displaying the defendant’s title. A forensic chemist with the State Crime Lab recognized the substance as fentanyl, however her lab report didn’t classify fentanyl as both an opioid or an opiate. The defendant was charged with trafficking in opiates, possession of a Schedule II managed substance, and possession of drug paraphernalia. Gibbs, No. COA20-591, Slip Op. pp. 3-4.
Earlier than jury choice, the prosecutor requested the trial courtroom for an “advisory ruling” on whether or not fentanyl was an opioid or an opiate. The trial courtroom declined to provide an advisory ruling, agreeing with protection counsel that whether or not trafficking in fentanyl was prohibited on the time can be decided by the knowledgeable’s testimony. Gibbs, No. COA20-591, Slip Op. pp. 4-5. As famous above, the chemist was permitted to testify that fentanyl was each an opioid and an opiate, however “[i]n this specific occasion, fentanyl is taken into account an opiate.” Gibbs, COA20-591, Slip Op. pp. 6-7.
Upon overview, the Court docket of Appeals in Gibbs I famous the chemist’s credentials: she held a grasp’s diploma in chemistry; handed the American Board of Criminalistics Certification examination; and labored for the State Crime Lab for about fifteen years. Additional, she had attended three current trainings on opiates. The chemist additionally testified, nonetheless, that she didn’t assume it was incorrect to categorise fentanyl as an opiate; that she acquired solely a common overview of addiction-forming properties of opiates, opioids, and opium; and that her coaching didn’t particularly embody details about addiction-forming or sustaining legal responsibility. Gibbs, COA20-591, Slip Op. pp. 9‑10.
Given this latter testimony, the Court docket of Appeals in Gibbs I held the trial courtroom erred by admitting the knowledgeable’s opinion on fentanyl. “With out attending coaching or having information of the traits of an opiate,” it stated, the witness “was not certified to opine fentanyl glad the statutory definition of an opiate.” Gibbs, COA20-591, Slip Op. p. 11. Based mostly on this error, the bulk reversed the defendant’s conviction for trafficking in opiates. Id. at 15. Chief Decide Stroud dissented, conferring a proper to enchantment to our Supreme Court docket. See N.C.G.S. § 7A‑30.
C. Testimony on Questions of Legislation.
“[A]t widespread legislation courts don’t permit opinion on a query of legislation, except the problem issues overseas legislation.” 1 McCormick on Evid. § 16 (eighth ed. 2022). Skilled testimony on the legislation is inadmissible beneath Federal Guidelines of Proof 403 and 702. Thomas E. Baker, The Impropriety of Skilled Witness Testimony on the Legislation, 40 U. Kan. L. Rev. 325, 337 (1992). The adoption of the North Carolina Guidelines of Proof in 1984 didn’t change the rule that an knowledgeable could not testify {that a} specific authorized conclusion or customary has been met, “no less than the place the usual is a authorized time period of artwork which carries a selected authorized that means not readily obvious to the witness.” State v. Smith, 315 N.C. 76, 100, 337 S.E.2nd 833, 849 (1985); accord State v. Fisher, 336 N.C. 684, 703, 445 S.E.2nd 866, 877 (1994), cert. denied, 513 U.S. 1098, 130 L. Ed. 2nd 665 (1995); cf. State v. Parker, 354 N.C. 268, 289, 553 S.E.2nd 885, 900 (2001) (“Testimony a couple of authorized conclusion primarily based on sure information is improper.”), cert. denied, 535 U.S. 1114, 153 L.Ed.2nd 162 (2002).
Our Supreme Court docket has discerned “two overriding causes” for excluding knowledgeable testimony on questions of legislation:
The primary is that such testimony invades not the province of the jury however the province of the courtroom to find out the relevant legislation and to instruct the jury as to that legislation. It’s for the courtroom to clarify to the jury the given authorized customary or conclusion at difficulty and the way it ought to be decided. To allow the knowledgeable to make this willpower usurps the perform of the decide. The second cause is that an knowledgeable is in no higher place to conclude whether or not a authorized customary has been glad or a authorized conclusion ought to be drawn than is a jury which has been correctly instructed on the usual or conclusion.
HAJMM Co. v. Home of Raeford Farms, Inc., 328 N.C. 578, 587, 403 S.E.2nd 483, 489 (1991) (quotation and citation marks omitted).
From Gibbs I, the State appealed to our Supreme Court docket primarily based on Chief Decide Stroud’s dissent, “which might have held that it was not an abuse of discretion to permit the knowledgeable to testify that fentanyl is an opiate.” State v. Gibbs, 384 N.C. at 655, 887 S.E.2nd at 847. Past reciting the factual and procedural historical past, our Supreme Court docket’s opinion consists largely of the next: “The trial courtroom erred in concluding that whether or not fentanyl is an opiate is a query of truth. As an alternative, whether or not fentanyl was an opiate for functions of the trafficking statute in 2018 is a query of legislation.” Id. This was the premise from which our Supreme Court docket succinctly concluded: “As a result of it’s a authorized query of statutory interpretation, it was not essential to have knowledgeable testimony to determine whether or not fentanyl is an opiate and it was not essential to have what in any other case could have been applicable discovery by the protection of the idea for the knowledgeable’s opinion on that query.” Id. Our Supreme Court docket vacated the Court docket of Appeals’ opinion in Gibbs I and remanded to that courtroom for consideration of whether or not fentanyl was an opiate on the time of the defendant’s possession. Id.
Upon remand, our Court docket of Appeals in Gibbs II relied upon the reasoning in Garrett and concluded that, for functions of the appliable statutes, “fentanyl is an opiate as a matter of legislation.” State v. Gibbs, No. COA20-591-2, Slip Op. p. 7 (N.C. Ct. App. Sep. 9, 2023) (unpublished). Echoing the Supreme Court docket’s opinion, the Court docket of Appeals declared: “there was no want for an knowledgeable witness to testify at Defendant’s trial relating to whether or not it was an opioid or opiate.” Id. “Accordingly,” it stated, “we conclude there was no error relating to Defendant’s conviction for trafficking by possession of an opiate.” Id.
D. Conclusion.
Gibbs is an proof case. Certainly, the problem upon which the Court docket of Appeals in Gibbs I awarded aid – and which conferred a proper to enchantment to our Supreme Court docket – is whether or not the trial courtroom erred by admitting knowledgeable testimony “that fentanyl was an opiate.” Gibbs, No. COA20-591, Slip Op. p. 15. Though it’s not totally clear, the proof rule Gibbs appears to be making use of is the prohibition on knowledgeable testimony relating to a query of legislation. To make sure, neither our Supreme Court docket nor the Court docket of Appeals in Gibbs II articulates that rule explicitly and even cites any authority pointing to it. However that’s the rule most immediately implicated by the error dedicated by the trial courtroom and recognized by our Supreme Court docket: “concluding that whether or not fentanyl is an opiate is a query of truth.” Gibbs, 384 N.C. at 655, 887 S.E.2nd at 847. Consequently, not solely was it pointless to have knowledgeable testimony to determine whether or not fentanyl is an opiate, but it surely was additionally improper beneath this rule to permit admission of the testimony. See e.g., Parker, 354 N.C. at 289, 553 S.E.2nd at 900.
Not like many different proof instances, nonetheless, Gibbs can be a case concerning the function of the decide and jury. As our Supreme Court docket elsewhere defined, it’s for the courtroom to find out the relevant legislation and to instruct the jury as to that legislation. HAJMM Co., 328 N.C. at 587, 403 S.E.2nd at 489. The trial courtroom in Gibbs erred by admitting knowledgeable testimony on whether or not fentanyl is an opiate beneath Part 90-95, as if it was for the jury to find out whether or not possession was a criminal offense. But when the trial courtroom erred in that regard, the events had been maybe complicit. Questions concerning the scope of the relevant legislation ought to neither be submitted to the trial courtroom for advisory ruling nor proffered as a foundation for knowledgeable testimony. Fairly, such questions could also be litigated and resolved upon movement to dismiss (for failure to allege an offense) or through the cost convention.
