State v Baker, (02-1174) 05/20/2003

Appeal by defendant from judgments entered 14 March 2002 by Judge Jerry Braswell in Onslow County Superior Court. Heard in the Court of Appeals 19 May 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

Samuel S. Popkin, for defendant-appellant.

CALABRIA, Judge.

    Defendant Lawrence Darnell Baker was charged with possession with intent to sell and deliver cocaine, the sale of cocaine, and the delivery of cocaine in 01CRS55804; conspiracy to deliver cocaine and conspiracy to sell cocaine in 01CRS55805; and attaining the status of habitual felon in both cases. According to the State's evidence, the narcotics division of the Onslow County Sheriff's Department conducted an undercover drug operation with the assistance of a confidential and reliable informant (“C.I.”). C.I. contacted William James (“James”), defendant's co-conspirator, then James contacted defendant and arranged for defendant to meet with both C.I. and an undercover law enforcement officer, DetectiveMichael Washington (“Detective Washington”). On or about 7 June 2001, defendant met with C.I. and Detective Washington, at which time defendant sold cocaine to the detective.
    At trial, Detective Washington testified to statements made by C.I. when C.I. called co-conspirator James. Defendant objected to Detective Washington's testimony as to the conversation between C.I. and James. The court overruled his objection. Defendant did not present any evidence.
    The jury subsequently found defendant guilty as charged, and defendant admitted to attaining the status of habitual felon. The trial court sentenced defendant to two consecutive terms of 96-125 months imprisonment. Defendant appeals.
    On appeal, defendant argues the trial court erred in allowing Detective Washington to testify as to statements made by C.I. and co-conspirator James. At the outset, we note defendant has failed to set out the applicable assignment of error after his argument, as required by N.C.R. App. P. 28(b)(6). Moreover, a review of the record shows that the grounds for defendant's objections at trial, upon which his assignments of error seemed to be based, are not the same as those argued in his brief. At trial and/or in his assignments of error, defendant objected to the admission of the subject testimony on the grounds that it was non-responsive or inadmissible hearsay. On appeal, however, defendant concedes the testimony in question was admissible under the hearsay rule and the exceptions thereto, but argues such testimony deprived defendant of his “essential right” to cross-examine C.I. and the co-conspirator,who allegedly are not trustworthy.
    Based upon these facts, we conclude defendant has failed to properly preserve this argument for review. See N.C.R. App. P. 28(b)(6) (2003) (requiring that an appellant reference the assignment(s) of error pertinent to the argument, identified by their number[] and by the pages at which they appear in the printed record on appeal and providing that failure to do so results in the assignment(s) being deemed abandoned); N.C.R. App. P. 10(b)(1) (2003) (requiring that a party timely object, stating the specific grounds for the ruling desired if the specific grounds are not apparent, and obtain a ruling on that objection); see also State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (“where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court.'” Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). More importantly, we conclude defendant's argument is without merit. State v. Willis, 332 N.C. 151, 167, 420 S.E.2d 158, 165 (1992) (“if testimony is admitted under the hearsay rule, or as an exception to it, there is no right of confrontation”); see also State v. Jackson, 348 N.C. 644, 654, 503 S.E.2d 101, 107 (1998) (rejecting same argument specifically as to the Confrontation Clause of the North Carolina Constitution). The trial court, therefore, did not err in admitting into evidence the subject testimony of Detective Washington.
    Defendant next argues the trial court abused its discretion infailing to consolidate his sentences for judgment and sentencing him to consecutive sentences. Referencing State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990), defendant submits the trial court's inquiry into his rejection of the State's plea offer and his decision to proceed to trial improperly resulted in the court's decision to sentence him to two consecutive sentences. We disagree.
    A judge may sentence a defendant, convicted of more than one offense at the same time, under one consolidated judgment. N.C. Gen. Stat. § 15A-1340.15(b) (2001). Likewise, as conceded by defendant, that statute “does not prohibit the imposition of consecutive sentences.” N.C. Gen. Stat. § 15A-1340.15(a) (2001). North Carolina General Statute § 15A-1340.16, however, provides, “[t]he Judge shall not consider as an aggravating factor the fact that the defendant exercised the right to a jury trial.” In Cannon, our Supreme Court stated,
        Where it can reasonably be inferred from the language of the trial judge that the sentence was imposed at least in part because defendant did not agree to a plea offer by the state and insisted on a trial by jury, defendant's constitutional right to trial by jury has been abridged, and a new sentencing hearing must result.
326 N.C. at 39, 387 S.E.2d at 451.
    Contrary to defendant's contentions, the facts here are readily distinguishable from those found in Cannon. Unlike the judge in Cannon, the trial judge in this case did not state any intent as to sentencing prior to the presentation of evidence during the guilt-phase of the trial. Instead, the record showsthat prior to the commencement of trial, the judge explained to defendant the consequences of his rejection of the plea offer, without any indication as to whether the judge would consider concurrent rather than consecutive sentences. The record is notably absent of any evidence to support an inference that the trial judge would have sentenced defendant any differently had defendant not elected to reject the State's plea offer and proceed to trial. Accordingly, we conclude the trial court acted within its discretion in sentencing defendant to consecutive sentences within the presumptive range.
    Having so concluded, we hold defendant received a fair trial, free from prejudicial error.
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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