Heard in the Court of Appeals January 21, 2015
Martin County. 12 CRS 50769.
Roy Cooper, Attorney General, by Scott K. Beaver, Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender, for defendant-appellant.
STEELMAN, Judge. Judges DIETZ and INMAN concur.
On writ of certiorari by defendant from judgment entered 5 February 2014 by Judge Alma L. Hinton in Martin County Superior Court.
Where defendant neither cross-examined the State's expert witness regarding the sufficiency of the sample size, nor made it a basis for his motion to dismiss at trial, defendant's argument is dismissed. We decline to take judicial notice of Version 4 and Version 7 of the SBI protocols, as they were never presented to the trial court.
I. Factual and Procedural Background
On 4 June 2012, narcotics officers from Martin and Washington Counties used a confidential informant to arrange a purchase of oxycodone pills from William Henry James (defendant). Defendant was in the passenger seat of a red car at the scene of the arranged purchase. When the deputies and officers arrived, the red car drove off. During the ensuing pursuit, defendant threw pills and pill bottles out of the car. This was observed by law enforcement officers. Deputy Sawyer of the Washington County Sheriff's Office retrieved two pill bottles containing a number of pills and Agent Davis, Narcotics Agent with the Martin County Sherriff's Office, retrieved four whole pills and two pill halves lying in the grass next to the road. The pills and pill bottles were then given to Deputy Wynne of the Martin County Sheriff's Office.
After returning to the Martin County Sheriff's Office, Deputy Wynne placed the pill bottles into separate evidence bags. Wynne testified that the four whole pills and two pill halves were placed into the evidence bag containing the bottle with similarly marked pills. Sixty-five pills were sent to the State Bureau of Investigation Laboratory for analysis.
Agent Alicia Matkowsky, a forensic chemist with the SBI, performed a chemical analysis on one pill from each bottle and concluded that both pills contained oxycodone, a substance containing opiates. The total weight of the two pills tested was 0.99 gram. Agent Matkowsky visually inspected the other sixty-three pills and concluded that based on the physical characteristics with respect to shape, color, and imprint, the pills were " consistent with" oxycodone. The total weight of the sixty-five pills submitted was 31.79 grams.
On 28 January 2013, defendant was indicted for trafficking in opium by possession of 28 grams or more; trafficking in opium by transportation of 28 grams or more; and possession with intent to sell or deliver opium. On 5 ...