Appeal by defendant from judgments entered 8 May 2001 by Judge
W. Osmond Smith, III, in Alamance County Superior Court. Heard in
the Court of Appeals 22 August 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin L. Gavin, II, for the State.
Mary March Exum for defendant-appellant.
MARTIN, Judge.
Defendant appeals from judgments entered upon his convictions
of delivery of cocaine to a minor child 13 years old or younger,
second degree kidnapping, and assault on a child under the age of
12 years.
The State's evidence tended to show that C.J., an eight-year-
old girl, and her family were neighbors with defendant in a mobile
home park. Prior to the alleged incident, there had been friendly
interactions between C.J.'s family members and defendant, including
C.J., her sisters, and/or her mother going to defendant's home to
watch television or use the telephone. On 19 June 2000, her
sister's birthday, C.J. was playing outside and saw defendant, who
asked her to come to his trailer because he had a birthday present
for her sister. Once inside the trailer, C.J. testified thatdefendant turned the television up loud, took her into the bedroom,
and put a weight bench and weights against the door. He then
reached under the bed and pulled out what C.J. described as a
plastic tube that had “black stuff at the bottom and it was
bubbling.” He held a lighter to the far end of the tube and
inhaled from the other end, then held the tube to C.J.'s mouth and
had her inhale twice before he inhaled from it again. C.J.
testified that her stomach hurt and her throat burned after the
inhalations.
Meanwhile, C.J.'s mother had become concerned about her
daughter's whereabouts and learned from a neighbor that C.J. had
gone with defendant to his residence. She went to defendant's
door, knocked very loudly, and called their names. C.J. stated
that when her mother was at the door, the defendant held his hand
over her mouth, asking her to be quiet. C.J. testified that after
her mother left, defendant put her in the bedroom closet and held
the door closed. One of C.J.'s sisters then came to the door of
the trailer and knocked. Defendant let C.J. out of the closet and
the bedroom, gave her a hug, asked her “not to tell anyone,” and
gave her fifty cents.
C.J. went to a neighbor's residence where her mother was,
began to cry, and told her mother what had happened. The police
and EMS were called and C.J. was later taken to the hospital for
testing for drug exposure. Results of a test of her urine revealed
that C.J. had cocaine metabolites in her system.
A search of defendant's residence by law enforcement officerson the following day, 20 June 2000, turned up rolling paper, a
spoon and a plastic bag corner that both tested positive for
cocaine residue, two pointed metal rods, a metal wire sponge, and
other plastic bags or bag corners. The officers found neither a
plastic tube such as that described by C.J., nor crack cocaine.
Robert Wilborn, a narcotics investigator for the Alamance
County Sheriff's Department, was permitted to testify as an expert
witness “in the field of identification of cocaine related
paraphernalia and illegal cocaine use and practices.” Over
defendant's objection, and after giving a limiting instruction to
the jury, the trial court allowed Mr. Wilborn to use two plastic
bag corners, each containing a piece of crack cocaine, a plastic
bag of marijuana, and two glass tubes containing screens, which he
identified as homemade pipes used to smoke crack cocaine, to
illustrate his testimony concerning crack cocaine use. None of the
items had been found in defendant's residence nor did the State
contend the items were connected to defendant in any way. The
witness explained how crack cocaine is made by cooking powder
cocaine and baking powder together, and how it is packaged for sale
by being pushed into the corner of a plastic bag that is then tied
off and cut above the knot. He also explained how crack pipes are
made and used. Mr. Wilborn testified that the plastic bags and bag
corners found in defendant's home were similar to those used to
package crack cocaine. He also testified that crack cocaine can be
broken into small pieces, rolled with marijuana in rolling paper,
and smoked, and that this substance was called “Bufi” on thestreet. With respect to the two metal rods and metal sponge taken
from defendant's trailer, the officer testified that the sponge
appeared to have a bit cut off of it. He also described the metal
rods as being about 4 inches in length. He testified that “push
rods” are used in the construction of a crack pipe to push a screen
into a tube to hold the crack cocaine at one end. Finally, he
testified that C.J.'s testimony about the alleged incident was
consistent with the use of crack cocaine.
Defendant offered the testimony of his landlady, who stated
that the previous tenants to whom she had rented the mobile home
had not cleaned after they had vacated it and that she had not had
time to clean it thoroughly before defendant moved in. She also
testified that she had never smelled the odor of marijuana or
cocaine in the mobile home after defendant moved in and had never
known him to be involved with drugs. There was evidence that C.J.
did not have any “funny odor” on her breath when she went to the
neighbor's house and told her mother about the alleged incident.
Defendant also offered the testimony of an expert witness in
the field of toxicology who testified that proper procedures which
should be used in forensic testing required that a confirmatory
test should have been conducted after the screening test revealed
a positive result for the presence of cocaine metabolites in C.J.'s
urine. There was also evidence that some substances, such as
analgesics, can cause false positives.
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Defendant brings forward three assignments of error in whichhe alleges the trial court erred by (1) admitting into evidence the
results of an analysis of C.J.'s urine, (2) admitting into
evidence, for illustrative purposes, items that were wholly
unconnected to the defendant, and (3) denying his motion to remove
and replace a juror to whom a deputy sheriff had made a comment
about the case. His remaining assignments of error have been
abandoned. N.C.R. App. P. 28(b)(6). We have carefully considered
his arguments and find no prejudicial error in his trial.
I.
Defendant first asserts that it was error for the trial court
to allow into evidence the results of the test of C.J.'s urine
because (a) there was no evidence confirming that the urine tested
was C.J.'s, (b) the results are not “inherently reliable” due to
the lack of a formal chain of custody, and (c) the test was done
for medical purposes and thus lacked the confirmatory procedures
normally required for forensic evidence. Defendant moved
in limine
for the exclusion of the results and objected to their admission at
trial. After a
voir dire hearing on the issue, the motion was
denied. Defendant's objections at trial were overruled.
Defendant challenges the State's use of the urine test results
as “hearsay” because no witness saw C.J. give the urine sample.
Thus, defendant asserts that even before any flaws in the chain of
custody occurred, there was no valid sample that could be connected
with the victim. Defendant also attacks various differences
between the procedure used by the hospital in this case and the
procedures it would normally use for forensic testing, includingthe handling of the sample and how it was tested.
In general, a trial judge has the discretion to decide whether
enough evidence has been introduced to show that the item offered
is the same as the one involved in the case.
See State v. Sloan,
316 N.C. 714, 343 S.E.2d 527 (1986). Although a defendant may
point to gaps or flaws in the chain of custody or procedure, a
showing that the evidence was tampered with or altered is generally
required for a reversal of the trial court's decision to admit the
evidence.
See id. Rather, concerns about the chain of custody of
the material or the procedures used to test it go to the weight
that should be accorded to the test results.
See id.;
State v.
Miller, 80 N.C. App. 425, 342 S.E.2d 553 (1986). The defense had
ample opportunity to present those concerns to the jury in this
case and did so at length.
Defendant also argues the trial court erred in permitting the
nurse who attended C.J. during her visit to the emergency room to
testify from the medical records that C.J.'s urine tested
“positive” for cocaine. Asserting that the nurse should not have
been allowed to testify as to the test results, defendant cites
cases in which new trials were granted because medical experts
improperly testified as to results of tests, thus presenting the
results as substantive evidence rather than as a basis for expert
opinion.
See,
e.
g.,
State v. Wade, 296 N.C. 454, 251 S.E.2d 407
(1979)
; State v. Edwards, 63 N.C. App. 737, 306 S.E.2d 160,
disc.
review denied, 309 N.C. 633, 308 S.E.2d 717 (1983)
. Those cases,
however, are inapposite here; the witness rendered no expertopinion and the test results had already been received into
evidence. Moreover, defendant's expert, who testified primarily
about forensic and medical testing procedures, gave testimony,
without objection, as to the positive results of the test and the
attending doctor's diagnosis of “cocaine abuse.” An objection to
the admission of evidence is waived where the same or similar
evidence is subsequently admitted without objection.
State v.
Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992). Defendant's
assignments of error relating to the admission of the results of
the test of C.J.'s urine are overruled.
II.
Defendant next asserts that it was prejudicial error for the
Court to allow Investigator Wilborn to illustrate his testimony
concerning crack cocaine usage by using cocaine, marijuana, and
sundry items of drug paraphernalia that were neither found in
defendant's residence nor otherwise connected to the events alleged
to have occurred on 19 June 2000. Defendant asserts the evidence
was irrelevant and unfairly prejudicial.
The relevance of evidence is judged in terms of its tendency
to make the existence of any fact at issue more or less probable.
N.C. Gen. Stat. § 8C-1, Rule 401 (2002). Even where evidence is
determined to be relevant, the trial court must balance its
probative value against the likelihood of unfair prejudice due to
confusion or the inflammatory nature of the evidence. N.C. Gen.
Stat. § 8C-1, Rule 403 (2002). While clearly reviewable on appeal,
a trial court's ruling on relevance is generally given muchdeference.
See State v. Godley, 140 N.C. App. 15, 25, 535 S.E.2d
566, 574 (2000);
disc. review denied, 353 N.C. 387, 547 S.E.2d 25,
cert. denied, 532 U.S. 964, 149 L. Ed. 2d 384 (2001). A trial
judge's decision under Rule 403 regarding the relative balance of
probative weight and potential for prejudice will only be
overturned for an abuse of discretion.
See State v. Wallace, 351
N.C. 481, 528 S.E.2d 326,
cert. denied, 531 U.S. 1018, 148 L. Ed.
2d 498 (2000). Even where evidence is erroneously admitted because
it is irrelevant or prejudicial, the defendant has the burden of
showing that the error was not harmless, that “there [was] a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial
. . . .” N.C. Gen. Stat. § 15A-1443(a) (2002).
Defendant cites
State v. Moctezuma, 141 N.C. App. 90, 539
S.E.2d 52 (2000), in support of his argument that the admission of
evidence which is not connected to a defendant is both irrelevant
and prejudicial. In
Moctezuma, the defendant was convicted of
trafficking in cocaine after police interrupted an alleged drug
transaction in a parking lot and found a quantity of cocaine in a
van driven by defendant. Defendant claimed not to have had
knowledge the cocaine was in the van. The State was permitted to
introduce evidence of a large quantity of drugs and drug
paraphernalia found in a residence which defendant shared with
several other men. Defendant, however, was not charged with
possession of the drugs and paraphernalia found at the residence
and there was no evidence to connect those substances withdefendant. The trial court instructed the jury it could consider
the evidence of the drugs and paraphernalia found at the residence
on the issue of defendant's knowledge of the cocaine found in the
van he was driving at the time of his arrest.
Id. at 95, 539
S.E.2d at 56. This Court held that, despite the trial court's
limiting instruction, the evidence was improperly admitted because
it was not connected to the defendant and could have led the jury
to conclude that defendant was a “high level drug trafficker.”
Id.
In
Moctezuma, the improperly admitted evidence was offered for
substantive purposes, to show the defendant's awareness of the
drugs in the van. Here, the items about which defendant complains
were admitted only for illustrative purposes; no attempt was made
to link the defendant with the items. “It is an established
principle of the law of evidence that a model of a place or a
person or an object may be employed to illustrate the testimony of
a witness so as to make it more intelligible to the . . . jury.”
State v. See, 301 N.C. 388, 391, 271 S.E.2d 282, 284 (1980).
C.J. testified that defendant used a tube with “black stuff”
at the bottom and that he held a lighter under it, the “black
stuff” was bubbling, and that defendant held the tube to her mouth
and told her to inhale. That drug paraphernalia was found in
defendant's residence was unquestionably relevant to support her
testimony, but would have little meaning to the jury without some
explanation of the manner in which such paraphernalia could be
used, since crack cocaine use is not within the life experience of
most jurors. While no tubes were found in defendant's residence,plastic bag corners, metal rods, and metal sponge material were
found. In his testimony, Investigator Wilborn explained what a
“crack pipe” is, how it is made, and how it is used. To illustrate
his explanation, he used the glass tubes to which defendant
objects. We believe the use of the tubes for illustrative purposes
to show the jury the manner in which crack cocaine can be used was
helpful to an understanding of the significance of C.J.'s
description of the events as well as to explain the relevance of
the metal sponge material and metal rods found in defendant's
residence. Likewise, Investigator Wilborn explained how crack
cocaine is packaged in plastic bag corners by using pieces of crack
cocaine, though none had been found in defendant's residence, to
illustrate his testimony. This testimony was admissible to explain
the relevance of the bag corners found in defendant's residence.
Finally, to explain the relevance of the rolling papers found in
defendant's residence, Investigator Wilborn was appropriately
permitted to use the marijuana to illustrate his testimony that
marijuana and crack cocaine can be mixed and smoked in rolling
paper. We find no prejudicial error in the trial court's ruling
permitting Investigator Wilborn to use the exhibits to illustrate
his testimony, especially in view of the careful and repeated
limiting instructions given by the trial court, in which the court
emphasized to the jury that the exhibits were not seized from the
defendant, were not linked to him, and were to be considered only
for the purpose of illustrating and explaining Investigator
Wilborn's testimony.
See State v. Moore, 335 N.C. 567, 440 S.E.2d797 (1994)
; State v. See, supra; State v. McLeod, 17 N.C. App.
577, 194 S.E.2d 861 (1973).
III.
Defendant lastly assigns error to the trial court's denial of
his motion to remove and replace a juror after the juror reported
that a law enforcement officer had spoken to her about the trial
outside the courtroom. The record shows that after the evidence
was completed on a Friday, the jury was excused for the weekend.
Upon the return of the jury on the following Monday, and prior to
receiving the jury instructions, Juror Hall sent the following
written communication to the court:
For Your Information:
On Friday afternoon another unknown Sheriff
approached me and asked “shouldn't you have
left that badge in the courthouse.” I
replied, “no, the judge instructed us to wear
them to and from court.” He seemed to doubt
me still, and I told him it was a long case.
He then asked, “is that the case where they
gave the 9 yr old dope,” I did not know what
to do or say. Knowing I'm not supposed to
talk about the case, however, he was a
Sheriff. I just shook my head even though he
did not know the specifics.
Just wanted to let you know, made me very
uncomfortable.
Defendant contends the trial court abused its discretion in not
replacing the juror upon learning of the improper contact. We
disagree.
Where it is brought to the trial court's attention that there
has been outside contact with a juror, it is the duty of the trial
court to inquire and to determine the nature of the contact and
whether it resulted in substantial and irreparable prejudice to thedefendant.
State v. Garner, 340 N.C. 573, 459 S.E.2d 718 (1995),
cert. denied, 516 U.S. 1129, 133 L. Ed. 2d 872 (1996). The scope
of the inquiry is within the discretion of the trial court.
Id.
In the present case, upon receipt of the note, the trial
court, with agreement of counsel for the State and defendant,
conducted an inquiry of the juror which established that the person
who had made the comment to her had no connection to the case or
the trial. In addition, the juror stated unequivocally that
nothing about the incident would affect her consideration in any
way, that she would exclude the incident from her consideration,
and that she would decide the case based solely on the evidence
presented in the courtroom and law as explained by the court. The
trial court found and concluded, from the inquiry, that the juror
was “able to decide the case solely on the evidence presented and
exclude any contact -- any effects of the contact by mentioning her
communication to the Court and as she said to the court in the
courtroom.” The trial court was in a position to observe the juror
and to measure her responses, which satisfied the court that the
comment of the deputy had not tainted the juror. We discern no
abuse of discretion in the trial court's decision.
See State v.
Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997). This assignment of
error is overruled.
No error.
Judges TYSON and THOMAS concur.
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