A man convicted on multiple drug charges has secured a partial reversal after the Court of Appeals of Indiana determined that evidence obtained from a drug information website was inadmissible at his trial.
While responding to a disturbance call in August 2020, Terre Haute police officers stopped Dwayne Washington as he was leaving an apartment complex. The officers thought Washington looked ready to flee, so they conducted a pat-down search that revealed a handgun and two baggies containing marijuana in Washington’s pockets.
Officers took Washington to the county jail, and before they could conduct a strip search, Washington gave them some pills and a substance that was later identified as methamphetamine. But the officers identified the pills as hydrocodone based on information from Drugs.com.
At a subsequent trial for Washington’s many drug possession and dealing charges stemming from the incident, the state presented testimony from one of the officers that the pills recovered from Washington at the jail were hydrocodone. However, no chemical tests were conducted on the pills to identify them. Rather, an officer explained that he had only matched the physical characteristics of the pills to hydrocodone as described on Drugs.com.
The Vigo Superior Court admitted that testimony over Washington’s hearsay objection, as well as a printout from the website showing identifying information for hydrocodone.
Washington was then convicted of Class A misdemeanor possession of a schedule II controlled substance, among other charges, and was sentenced to an aggregate term of 16 years behind bars, with six years suspended to probation.
In reversing Washington’s controlled substance conviction, the Court of Appeals addressed an issue of first impression: whether information obtained from Drugs.com to identify hydrocodone pills is admissible under the market reports exception to hearsay.
The answer, it concluded, is no.
“The State acknowledges that the use of a website to identify loose pills is not analogous to the reliance on the regulated label of a commercially marketed drug. Still, the State maintains that ‘the fact that government regulations require accuracy in a statement is not a litmus test for admissibility under Rule 803(17),’” Judge Paul Mathias wrote for the COA.
The appellate panel found Washington’s reliance on the Colorado Court of Appeals’ opinion in People v. Hard, 342 P.3d 572 (Colo. App. 2014), to be instructive. There, the court concluded that Colorado had not shown either that its reliance on Drugs.com to prove that the defendant had illegally possessed two prescription drugs was necessary, or that the website was reliable.
The Indiana appellate court reached the same conclusion in Dwayne Keith Washington v. State of Indiana, 21A-CR-997.
“The trial court found, and the parties do not dispute, that the evidence obtained from Drugs.com was hearsay. We agree with Washington that the State’s reliance on Drugs.com was not necessary and that the State has not shown that Drugs.com is a reliable source for drug identification,” Mathias wrote.
Finding no additional evidence presented to show that the pills were a controlled substance, the COA reversed Washington’s controlled substance possession conviction.
“We hold that the market reports exception to hearsay under Evidence Rule 803(17) does not apply to allow the admission of evidence from Drugs.com that was used to convict Washington,” it concluded. “Accordingly, the trial court abused its discretion when it admitted the evidence purporting to show that the pills in Washington’s possession were hydrocodone based on the description on Drugs.com.”