STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 01 CRS 9675
JOSE JABIR GONZALES, 01 CRS 9676
01 CRS 9677
Defendant. 01 CRS 9678
Attorney General Roy Cooper, by Assistant Attorney General
Richard L. Harrison, for the State.
J. Clark Fischer for defendant appellant.
ELMORE, Judge.
Defendant appeals his convictions, following a jury trial, for
trafficking in cocaine by possession, trafficking in cocaine by
sale, trafficking in cocaine by delivery, and conspiracy to traffic
in cocaine. We find no error.
The State's evidence tended to show Charlotte-Mecklenburg
Police Officer W.D. Carey (Carey) made undercover cocaine purchases
from defendant and his associates, Romero and Sergio Hernandez, on
22 February 2001 and 5 March 2001. Carey testified that he bought
an ounce of cocaine from defendant for nine hundred dollars
($900.00) on 22 February 2001 in the parking lot of Kilborne Park,at a meeting arranged by a confidential reliable informant. When
Carey met defendant, he was sitting in the passenger's seat of a
grey van driven by Sergio. As Carey approached the van, Sergio
asked him, “[D]o you have it? You got it?” Carey replied, “Show
me something[,]” and saw defendant hand Sergio the cocaine. After
they had completed the transaction, defendant introduced himself to
Carey as “Raul[.]” Carey asked defendant about making additional
purchases, and the two men exchanged telephone numbers.
Carey telephoned defendant later that day to report his
satisfaction with the cocaine and to see if he could purchase more.
Defendant met Carey at a Mexican goods' store at 7:00 p.m. and sold
him an additional quantity of cocaine for one thousand six hundred
dollars ($1,600.00). Carey asked defendant and the Hernandezes if
they could get him a kilogram of the drug at a “good price[.]” He
was told that the men would need “about a week” to arrange a deal
of that size.
Carey received a call from defendant at 11:30 p.m. on 4 March
2001. Defendant said he had the cocaine and asked Carey to come
for it immediately. Carey arranged to meet defendant the next
morning at a Walmart store. They agreed that Carey would purchase
half of the kilo for sixteen thousand dollars ($16,000.00).
Defendant called Carey on his cellular phone the following morning.
He told Carey that he would be wearing a Miami Dolphins jacket and
would be standing either in front of the Walmart or in the parking
lot beside the van. Carey pulled into the parking lot and saw
defendant with Sergio. They led Carey to the van. When Careyasked defendant for the drugs, Sergio lifted his shirt to reveal a
large ziplock bag containing smaller bags of cocaine. Carey gave
the take down signal as he examined the contraband. Uniformed
officers arrived and arrested everyone at the scene.
In his lone argument on appeal, defendant challenges Carey's
testimony identifying his voice on the 4 March 2001 telephone call.
Defendant's initial objection to Carey's identification testimony
was sustained by the trial court, as follows:
[CAREY:] On the 4th of March, 2001, . . . I
received a phone call from the person I [k]now
as Raul.
[DEFENSE COUNSEL]: OBJECTION.
THE COURT: SUSTAINED, without some foundation.
In response to the court's ruling, the prosecutor asked Carey about
his prior face-to-face and telephonic conversations with defendant
on 22 February 2001. Carey testified that, based upon these
interactions, he was able to recognize defendant by voice. The
prosecutor again asked Carey about the identity of the caller on 4
March 2001, as follows:
[PROSECUTOR:] So, on March 4th, when you
received a phone call from someone who
identified himself as Raul, did you have a
recognition of that voice, on the other end?
[CAREY:] Yes ma'am. I did.
[PROSECUTOR:] And, whose voice did you
recognize it to be?
[CAREY:] It was that of [defendant].
Defendant did not object to this testimony and thus waived his
earlier objection. Where evidence is admitted without objection,the benefit of a prior objection to the same or similar evidence is
lost, and the defendant is deemed to have waived his right to
assign as error the prior admission of the evidence. See State v.
Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985).
The North Carolina Rule of Appellate Procedure 10(c)(4)
provides that:
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
error.
N.C.R. App. P. 10(c)(4). Defendant has not argued plain error on
appeal. Therefore, his assignment of error is overruled.
Assuming arguendo that he had properly preserved the issue for
appeal, we note that there nevertheless was sufficient evidentiary
support for Carey's voice identification testimony under North
Carolina Rule of Evidence 901(a) and (b)(5). Particularly, Carey's
testimony establishing the basis for his familiarity with
defendant's voice, as well as the topic of the call and defendant's
subsequent consistent conduct were sufficient foundation for the
voice identification. See Ingle v. Allen, 69 N.C. App. 192, 198,
317 S.E.2d 1, 4, disc. review denied, 311 N.C. 757, 321 S.E.2d 135
(1984); see also State v. Williams, 288 N.C. 680, 698, 220 S.E.2d
558, 571 (1975) (“Identity of the caller may be established by
testimony that the witness recognized the caller's voice, or by
circumstantial evidence”). Any issue regarding the strength of theidentification was a question of fact for the jury. Ingle, at 198,
317 S.E.2d at 4 (citing State v. Coleman, 270 N.C. 357, 364, 154
S.E.2d 485, 490 (1967)).
Defendant's remaining assignments of error are not addressed
in his brief to this Court and are therefore deemed waived under
the North Carolina Rules of Appellate Procedure, Rule 28(a).
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***