1. Criminal Law_continuance to examine withheld evidence--
denied_intangible hope of exculpatory evidence_insufficient
The trial court did not abuse its discretion by denying a
continuance for defendant to examine evidence withheld by the
State (a hat) after granting a motion in limine to exclude the
hat. Defendant's intangible hope, not based on known facts, that
an inspection of the hat would provide exculpatory evidence is
insufficient to warrant reversal.
2. Discovery_testimony about excluded evidence_permissible
The trial court did not err in a cocaine prosecution by
allowing testimony about the hat in which the cocaine was found
after excluding the hat because the State had failed to produce
it during discovery. The decision of whether to impose sanctions
and which sanctions to impose is within the sound discretion of
the trial court. Presuming that defendant realized that he had
lost his hat while escaping, he must have known that the charge
against him could only have resulted from discovery of the
cocaine in the hat, and he had ample reason to know that the hat
was an integral part of the incident and that the deputy would
likely testify about the hat. The court's decision not to
sanction the State by prohibiting that testimony was not an abuse
of discretion. N.C.G.S. § 15A-910.
3. Evidence_SBI admission sheet_discrepancy in date
The trial court did not err in a cocaine prosecution by
admitting an SBI lab report where defendant was alleged to have
possessed the narcotics on 23 October 1998 and the SBI admission
sheet referred to narcotics obtained on 28 October 1998. Any
inconsistency went to the credibility of the evidence and not to
its admissibility.
4. Evidence_redirect examination_scope_detail not elicited on
direct or cross
The court did not abuse its discretion in a cocaine
prosecution by allowing on redirect examination certain testimony
which defendant contended was beyond the scope of direct or
cross-examination. The trial judge has the discretion to permit
relevant evidence which could have been brought out on direct
examination; in this case, the subject of the redirect
examination was an additional detail about an incident which had
been addressed in depth during direct and cross-examination.
5. Appeal and Error_no citation to authority_case of firstimpression
An assignment of error was not deemed abandoned where
defendant did not cite authority in support of his argument
because there was no such authority. It was sufficient that
defendant stated an argument; otherwise, the ability of parties
to bring cases of first impression would be inhibited.
6. Sentencing_habitual felon_admission of prior plea
transcripts
There was no error in the admission of prior plea
transcripts in the habitual felon phrase of a trial where the
transcripts were admitted only after defendant's conviction of
the principal crimes. Defendant failed to explain how the
admission of the transcripts confused the jury or created
prejudice in such a way as to affect their verdict.
7. Evidence_cocaine_deputy's opinion_lab report subsequently
admitted
There was no prejudice in a cocaine prosecution in the
admission of a deputy's opinion that he found in defendant's hat
a substance which he thought was crack cocaine where a lab report
identifying the substance as cocaine was properly admitted.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John P. Barkley, for the State.
Bobby Khan for defendant-appellant.
HUNTER, Judge.
John Henry Stitt (“defendant”) was charged and convicted of
one count of felony possession of a Schedule II controlled
substance (cocaine), one count of resisting a public officer, and
one count of being an habitual felon. Defendant received a prison
sentence of 144 to 182 months for the two felony charges, and a
sentence of sixty days for the misdemeanor offense of resisting apublic officer. Defendant appeals from judgments entered against
him on 31 March 2000. We hold there was no error at trial.
The evidence tended to establish the following facts. On 23
October 1998, defendant was walking on Spring Hill Drive in Union
County at some time after midnight. Deputy Bill Shaw of the Union
County Sheriff's Office was sitting in his patrol car when he saw
defendant. Deputy Shaw was aware that there was an outstanding
warrant for defendant's arrest, and therefore got out of his car
and directed defendant to “come to the car.” Defendant complied
and walked to the patrol car. At that time, defendant was wearing
a light blue ball cap with a “dark blue bill” and a “UNC Ram, Tar
Heel emblem on it.” Deputy Shaw ordered defendant to place his
hands on the car, and as Deputy Shaw began to place handcuffs on
defendant, defendant broke away and started running. Deputy Shaw
chased after defendant and, while chasing him, observed defendant
fall and then get up and continue running. Deputy Shaw also fell
when he reached the same spot, tripping over a go-cart. Upon
falling to the ground, Deputy Shaw noticed defendant's hat on the
ground, but when he got up he continued to chase defendant. When
Deputy Shaw saw defendant disappear into the woods, he stopped
chasing defendant, returned to where they had both fallen, and
picked up defendant's hat. He discovered a small, off-yellow, rock
substance in the hat at that time, which he took to his car and
placed in an evidence bag. Deputy Shaw wrote the date, 23 October
1998, on the evidence bag. However, when the evidence bag was sent
to the State Bureau of Investigation (“SBI”), Deputy Shaw
mistakenly wrote the date 28 October 1998 on the SBI submissionsheet accompanying the evidence bag. The SBI performed a chemical
analysis on the substance and determined that it was cocaine.
The pertinent procedural history is as follows. Prior to
trial, on 13 July 1999, defendant filed a “Request for Voluntary
Discovery,” requesting the State to produce all discoverable
materials pursuant to N.C. Gen. Stat. §§ 15A-902(a) and 15A-903
(1999), including “[a]ny physical evidence” and “[a]ny tangible
objects, such as . . . personal property possessed by Defendant.”
On 29 March 2000, the day before trial, the State notified
defendant for the first time that it was in possession of
defendant's hat. Defendant filed a “Motion to Continue” asking the
court for additional time in order to inspect the hat and to
prepare for trial. Defendant also filed a “Motion in Limine”
asking the court to exclude the hat as evidence. The trial court
conducted a hearing and found that the State had failed to produce
the hat during discovery without justification. The trial court
granted defendant's motion in limine and ordered that the hat would
be inadmissible as evidence; however, the court denied defendant's
motion to continue.
[1]On appeal, defendant presents six assignments of error,
accompanied by six corresponding arguments, for our review.
Defendant has abandoned a seventh assignment of error by failing to
present it in his brief. See N.C.R. App. P. 28(a). Defendant
first argues that the trial court erred in denying his motion to
continue. Generally, a trial court's ruling on a motion to
continue will not be reversed absent an abuse of discretion. See
State v. Brooks, 83 N.C. App. 179, 183, 349 S.E.2d 630, 633 (1986). Defendant argues that the trial court's denial of his motion to
continue constitutes an abuse of discretion because it deprived him
of an opportunity to inspect the hat for exculpatory evidence.
However, a continuance is proper in such circumstances only “if
there is a belief that material evidence will come to light and
such belief is reasonably grounded on known facts,” whereas “a mere
intangible hope that something helpful to a litigant may possibly
turn up affords no sufficient basis for delaying a trial.” State
v. Pollock, 56 N.C. App. 692, 693-94, 289 S.E.2d 588, 589, appeal
dismissed and disc. review denied, 305 N.C. 590, 292 S.E.2d 573
(1982). Defendant's intangible hope, not based on known facts,
that an inspection of the hat would provide exculpatory evidence is
insufficient to warrant a reversal here.
Moreover, the trial court was not obligated to grant
defendant's motion to continue as a result of the State's failure
to produce the hat during discovery. In response to the State's
failure to produce the hat, the trial court prohibited the State
from introducing the hat in evidence at trial. This remedy is one
of the permissible remedies set forth in N.C. Gen. Stat. § 15A-910
(1999), and “[t]he choice of sanction, if any, rests within the
discretion of the trial court.” State v. Browning, 321 N.C. 535,
539, 364 S.E.2d 376, 378 (1988). Defendant has failed to
demonstrate any abuse of discretion by the trial court in choosing
to grant the motion in limine and deny the motion to continue.
This assignment of error is overruled.
[2]Defendant next argues that the trial court erred byallowing Deputy Shaw to refer to the hat at trial because su
ch
testimony violated the trial court's order granting defendant's
motion in limine. We disagree. In the first place, the trial
court's order provided only that the hat itself would not be
admissible in evidence, and did not prohibit the State from
offering testimony regarding the hat. Nor was it error for the
trial court to refuse to sanction the State by prohibiting any
testimony regarding the hat. As noted above, the decision of
whether to impose sanctions pursuant to N.C. Gen. Stat. § 15A-910,
and which sanctions to impose, is within the sound discretion of
the trial court and is not reviewable on appeal absent an abuse of
discretion. See State v. Herring, 322 N.C. 733, 747-48, 370 S.E.2d
363, 372 (1988). Here, presuming that defendant realized that he
had lost his hat while escaping from Deputy Shaw on 23 October
1998, defendant must have known that the charge against him -- that
he possessed a controlled substance on that date -- could only have
resulted from Deputy Shaw discovering the cocaine in his hat.
Thus, defendant had ample reason to know from the outset that the
hat was an integral part of the incident and that Deputy Shaw would
likely testify about the hat at trial. The court's decision not to
sanction the State by prohibiting testimony about the hat was
therefore not an abuse of discretion. This assignment of error is
overruled.
[3]Defendant next argues that the trial court erred by
admitting in evidence the SBI lab report, identifying the substance
as cocaine, because there is a variance between the allegation that
defendant possessed the substance on 23 October 1998, and the SBIsubmission sheet which refers to narcotics obtained on 28 October
1998. Defendant argues that, because of the variance between the
date of the alleged offense and the date on the SBI submission
sheet, the SBI lab report should have been excluded from evidence
because it “bears no relevance to an offense occurring on October
23, 1998.” Defendant also states in his brief that his argument
“does not depend on the chain of custody,” but relates only to the
relevance of the SBI lab report and its admissibility.
“'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” N.C.R. Evid. 401. We believe the
SBI lab report was “relevant evidence” and was properly admitted.
Deputy Shaw testified: that he found the substance in defendant's
hat and placed it in a clear evidence bag and sealed the bag; that
he wrote the date of the offense, 23 October 1998, on the evidence
bag, and then inadvertently wrote the date 28 October 1998 on the
SBI submission sheet because the “3” on the evidence bag looked
like an “8”; that he sent the evidence bag to the SBI on 11 January
1999 in an envelope with his initials; and that the evidence was in
his sole care, custody and control between the time he found the
substance and the time he sent it to the SBI. Special Agent Irvin
Lee Allcox of the SBI Crime Laboratory in Raleigh testified as an
expert witness to the following: that the sealed evidence bag
containing the evidence was received by the SBI on 14 January 1999
and was analyzed on 15 January 1999; that the chemist who analyzed
the evidence prepared a lab report, and the results of the analysisshowed the substance to be a free-base form of cocaine, commonly
referred to as “crack cocaine”; and that the evidence was then
placed back in the evidence bag which was sealed and returned to
the Union County Sheriff's Office.
We do not believe that the date on the SBI submission sheet
has the effect of creating a variance between the charged offense
and the evidence presented at trial. Rather, the date on the
submission sheet merely amounts to an inconsistency in the evidence
presented at trial. The State offered a reasonable explanation for
the inconsistency in the evidence, and the jury was entitled to
accept or reject that explanation. See State v. Upright, 72 N.C.
App. 94, 100, 323 S.E.2d 479, 484 (1984) (holding that
inconsistency in the evidence goes to credibility of the evidence
and that it is within province of jury to determine weight to be
accorded the evidence), disc. review denied, 313 N.C. 513, 329
S.E.2d 400, cert. denied, 313 N.C. 610, 332 S.E.2d 82 (1985). We
hold that the SBI submission sheet constituted relevant evidence
and was properly admitted, and that any inconsistency in the
evidence went to the credibility of the evidence and not to its
admissibility. This assignment of error is overruled.
[4]By his fourth assignment of error, defendant argues that
the trial court erred by allowing certain testimony to be elicited
by the State on redirect examination of Deputy Shaw. Specifically,
defendant argues that Deputy Shaw was not questioned on either
direct or cross-examination regarding the duration of time that
elapsed between the time that Deputy Shaw stopped chasing defendantand the time that he picked up defendant's hat. Thus, defendant
argues, the court erred in overruling defendant's objection to the
following question put to Deputy Shaw by the State on redirect
examination: “How much time passed between the time that you got
to that tree line and . . . turned around and came back?” After
the court overruled defendant's objection, Deputy Shaw responded,
“[m]aybe three minutes at the most.” This redirect examination was
not erroneous. “Although the rule is that redirect examination
cannot be used to repeat direct testimony or to introduce an
entirely new matter, the trial judge has discretion to permit
counsel to introduce relevant evidence which could have been, but
was not brought out on direct.” State v. Locklear, 60 N.C. App.
428, 430, 298 S.E.2d 766, 767 (1983). There was no abuse of that
discretion here where the subject of the redirect examination
simply involved an additional detail about the incident in
question, and where the incident had already been addressed in
depth during direct and cross-examination. This assignment of
error is overruled.
[5]By his next assignment of error, defendant argues that the
trial court erred by allowing into evidence during the habitual
felon phase of the trial three “transcript of plea” forms relating
to defendant's three prior felony convictions. Defendant argues
that the transcripts contained irrelevant and highly prejudicial
information about defendant's criminal history, which information
created unfair prejudice in the minds of the jurors and should have
been excluded pursuant to Rule 403 of the North Carolina Rules of
Evidence. See N.C.R. Evid. 403 (“Rule 403”). The State in itsbrief argues only that defendant's assignment of error shou
ld be
deemed abandoned pursuant to Rule 28(b)(5) of the Rules of
Appellate Procedure as a result of defendant's failure to cite any
authority. See N.C.R. App. P. 28(b)(5) (“Rule 28(b)(5)”).
We first note that the State's reading of Rule 28(b)(5) has
previously been rejected by this Court. Rule 28(b)(5) states, in
pertinent part, “[a]ssignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.” This rule
sets out two scenarios in which an assignment of error may be
deemed abandoned: (1) where it is not set out in the appellant's
brief, or (2) where no reason or argument is stated or authority
cited in support of the assignment of error. Strader v. Sunstates
Corp., 129 N.C. App. 562, 567, 500 S.E.2d 752, 755, disc. review
denied, 349 N.C. 240, 514 S.E.2d 274 (1998). “The first requires
the party to direct the court to the appropriate assignment of
error in the record and the second requires the party to cite
authority or to make a legal argument for the extension or
modification of the law.” Id. at 567-68, 500 S.E.2d at 755
(emphasis added). The State's interpretation of the rule, that an
assignment of error is necessarily deemed abandoned if no authority
is cited, cannot be endorsed because it “would inhibit the ability
of parties to bring cases of first impression before the appellate
courts.” Id. at 568, 500 S.E.2d at 755.
Here, our research indicates that there is no existing
authority directly supporting defendant's argument that certaininformation, appearing in the transcript of plea forms admitted
during the habitual felon phase, was prejudicial to defendant and
should have been excluded by the trial court pursuant to Rule 403.
For this reason, defendant's failure to cite authority in support
of this proposition does not result in abandonment of the
assignment of error. It is sufficient that defendant has stated an
argument, especially since defendant has properly cited to the rule
that he would have us extend to this context, namely Rule 403.
[6]However, we find the assignment of error to be without
merit. Section 14-7.5 of our General Statutes requires that “an
habitual felon trial be held subsequent and separate from the
principal felony trial, and that an habitual felon indictment be
revealed to the jury only upon conviction of the principal felony
offenses.” State v. Wilson, 139 N.C. App. 544, 548, 533 S.E.2d 865,
868, appeal dismissed and disc. review denied, 353 N.C. 279, 546
S.E.2d 394 (2000); see N.C. Gen. Stat. § 14-7.5 (1999). As this
Court has previously explained,
the bifurcated procedure set forth in G.S. §
14-7.5, separating the principal felony trial
from the habitual felon proceeding, avoids
possible prejudice to the defendant and
confusion by the jury considering the
principal felony with issues not pertinent to
guilt or innocence of such offense, notably
the existence of the prior convictions
necessary for classification as an habitual
felon, and further precludes the jury from
contemplating what punishment might be imposed
were defendant convicted of the principal
felony and subsequently adjudicated an
habitual felon.
Wilson, 139 N.C. App. at 548, 533 S.E.2d at 868-69 (emphasis added)(citing State v. Todd, 313 N.C. 110, 117, 326 S.E.2d 249,
253
(1985)). Here, the plea transcripts in question were admitted only
after defendant was convicted of the offenses of felony possession
of cocaine and resisting a public officer. Moreover, “[i]n all
cases where a person is charged . . . with being an habitual felon,
the record or records of prior convictions of felony offenses shall
be admissible in evidence, but only for the purpose of proving that
said person has been convicted of former felony offenses.” N.C.
Gen. Stat. § 14-7.4 (1999) (emphasis added). Defendant has failed
to explain how the admission of prior plea transcripts during the
habitual felon phase of the trial could have created prejudice or
confused the jury in such a way as to affect the jury's verdict on
whether defendant had been convicted of certain former felony
offenses. This assignment of error is overruled.
[7]In his final argument, defendant contends that the State
failed to lay a proper foundation for the admission of Deputy
Shaw's testimony identifying the substance found in defendant's hat
as cocaine. The testimony in question consisted of Deputy Shaw's
statement that he found “[a]n off yellow rock substance which [he]
thought to be a cocaine, crack cocaine.” (Emphasis added.) The
trial court overruled defendant's objection to this testimony.
Defendant acknowledges that this assignment of error has merit only
if it is first determined that the SBI lab report, identifying the
substance as cocaine, should have been excluded from evidence.
This is because, if the SBI evidence was properly admitted, there
is no reasonable possibility that the admission of Deputy Shaw'sstatement affected the outcome of the trial, since such testimony
would be merely cumulative of the SBI evidence. See N.C. Gen.
Stat. § 15A-1443(a) (1999); State v. Jones, 329 N.C. 254, 259, 404
S.E.2d 835, 837 (1991). Since we have determined that the SBI lab
report was properly admitted, this assignment of error is without
merit and is overruled.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
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