Appeal by Defendant from convictions entered 25 June 2003 by
Judge W. Erwin Spainhour in Superior Court, Iredell County. Heard
in the Court of Appeals 2 November 2004.
Attorney General Roy Cooper, by Staci Tolliver Meyer, Special
Deputy Attorney General, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
WYNN, Judge.
Defendant Marvin Everette Joyner appeals from his conviction
of two counts of sale of a controlled substance and argues that the
trial court erred by: (1) introducing over objection a “mug shot”
photograph of Defendant tending to show Defendant was in police
custody at the time of the photograph; (2) failing to require the
State to reveal the confidential informant present in the vehiclewith the undercover officer at the time of the alleged drug deal;
and (3) sentencing Defendant as a Record Level III where the State
failed to prove Defendant's record level or receive a stipulation
from Defendant's counsel. After careful review, we find no
prejudicial error.
Briefly, the record shows that on the evening of 9 April 2000,
Officer Marla Wood, an undercover officer working with the
Narcotics Division of the Statesville Police Department, drove down
Wilson Lee Boulevard, a location known for drug trade. In the
vehicle with Officer Wood was a criminal informant. Officer Wood
and the informant were flagged down by Defendant in front of a
house on Wilson Lee Boulevard. Defendant approached the
passenger's side of the vehicle, where Officer Wood was seated, and
asked her what she needed. Officer Wood told Defendant she wanted
a “twenty,” the street word for a crack-cocaine rock. Defendant
walked back toward the house, where several people were situated on
the front porch, did something in the doorway, and returned to
Officer Wood's vehicle with a crack-cocaine rock. After the sale
was completed, Defendant and Officer Wood conversed for several
minutes.
While it was getting dark at the time of the first undercover
drug sale, Officer Wood saw _ and memorized _ Defendant's face.
Indeed, Officer Wood was trained to identify people by looking at,
inter alia, the forehead, shape of eyes, cheekbones, chin, hair,
and body shape.
Immediately following the first drug sale, Officer Wood met
with a surveillance team stationed one street away from the site ofthe sale. The team tested the rock, which was indeed cocaine.
Officer Wood then returned to Wilson Lee Boulevard, where Defendant
again approached her vehicle and asked what she needed. Officer
Wood again requested a “twenty,” which Defendant had in his hand.
The area where the sale took place was lit, and Officer Wood
identified Defendant as the same person who had previously sold her
drugs. As an additional means of identification, the next day,
Officer Wood rode back through the area where she had purchased the
crack cocaine and saw Defendant in the same location. Also on 10
April 2002, Officer Wood was shown a photograph of Defendant, whom
she positively identified as the person who had sold her the drugs.
To protect the undercover nature of the operation, Defendant
was not arrested until November 2002. Defendant was tried in June
2003 for two counts of sale of a controlled substance. At trial,
Defendant's estranged wife testified that Defendant was with her in
South Carolina at the time of the drug sales. Defendant's sister
also testified that Defendant was in South Carolina at the time of
the drug sales and that another man who resembles Defendant had
sold drugs near her home before.
On 25 June 2003, a jury convicted Defendant of two counts of
sale of a controlled substance. Defendant appealed.
[1] Defendant contends that the trial court erred by
introducing over objection a “mug shot” photograph of Defendant
tending to show Defendant was in police custody at the time of the
photograph. “A trial court's ruling on an evidentiary point will
be presumed to be correct unless the complaining party candemonstrate that the particular ruling was in fact incorrect.”
State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988)
(citing
State v. Milby, 302 N.C. 137, 273 S.E.2d 716 (1981)).
Moreover, even where an appellant shows error, “relief ordinarily
will not be granted absent a showing of prejudice.”
Id. (citation
omitted).
This Court has held that admitting into evidence a “mug shot”
photograph indicating that a defendant had previously been in
police custody may indeed be error.
State v. Segarra, 26 N.C. App.
399, 402-03, 216 S.E.2d 399, 402-03 (1975). However, where a
defendant was positively identified as the perpetrator of the
crimes through other means such as detailed testimony, the error
has been held to be harmless.
Id. (where defendant was identified
by two persons and detailed testimony of defendant's participation
in the crime were provided, admitting mug shot into evidence was
harmless error). Moreover, prejudice to a defendant is minimized
where the trial court gives a limiting instruction as to the
photograph.
State v. Cauthen, 18 N.C. App. 591, 595, 197 S.E.2d
567, 569 (1973) (trial court's limiting instruction regarding a mug
shot “minimized the possibility of any prejudice to defendant[]”).
Here, Officer Wood, who was trained in identifying people, saw
and memorized Defendant's face during the first drug sale and
attendant conversation. Officer Wood then returned to the scene
shortly after the first sale and purchased more crack cocaine from
Defendant. The area where the sales took place was lit, and
Officer Wood identified Defendant as the same person who had
previously sold her drugs. As an additional means ofidentification, the next day, Officer Wood rode back through the
area where she had purchased the crack cocaine and saw Defendant in
the same location. Given these multiple live identifications by a
trained undercover police officer and that officer's detailed
testimony thereof, any error in admitting the photograph of
Defendant would have been non-prejudicial. Moreover, the trial
court instructed the jury that the photograph was to be used solely
“to illustrate and explain the testimony of [Officer Wood] and for
no other purpose.” The trial court's instruction strictly limiting
the purpose for which the jury could consider the photograph
minimized the possibility of any prejudice to Defendant. This
assignment of error is therefore overruled.
[2] Next, Defendant contends that the trial court erred by
failing to require the State to reveal the confidential informant
present in the vehicle with Officer Wood at the time of the alleged
drug deal. It is axiomatic that “[t]his Court will not consider
arguments based upon matters not presented to or adjudicated by the
trial tribunal.”
State v. Eason, 328 N.C. 409, 420, 402 S.E.2d
809, 814 (1991) (citing
State v. Smith, 50 N.C. App. 188, 272
S.E.2d 621 (1980)). To preserve issues for appellate review, a
party must make a timely objection or motion, specifically stating
the grounds therefor, at trial. N.C. R. App. P. 10(b).
Here, Defendant failed to raise any objection to the trial
court's refusal to force the disclosure of the confidential
informant. Indeed, after defense counsel requested that the
informant be identified and the prosecutor's objection was
sustained, defense counsel not only failed to object but actuallyagreed to the ruling, stating, “Okay. I won't ask.” Because
Defendant failed to preserve this issue for appellate review, this
assignment of error is overruled.
[3] Finally, Defendant contends the trial court erred by
sentencing Defendant as Record Level III where the State failed to
prove Defendant's record level or receive a stipulation from
Defendant's counsel. North Carolina General Statute section 15-
1340.14(f) allows proof of prior convictions by stipulation, court
record of prior convictions, records from the Division of Criminal
Information, the Division of Motor Vehicles, or the Administrative
Office of the Courts, or by “[a]ny other method found by the court
to be reliable.” N.C. Gen. Stat. § 15A-1340.14(f) (2003). A
defendant's agreeing to a worksheet submitted by the State may
constitute reliable proof of prior convictions.
State v. Eubanks,
151 N.C. App. 499, 504-06, 565 S.E.2d 738, 742-43 (2002)
(statements by defense counsel that he had seen the State's
worksheet and had no objection to it could “reasonably be construed
as a stipulation by defendant that he had been convicted of the
charges listed on the worksheet[]”);
cf. State v. Hanton, 140 N.C.
App. 679, 690, 540 S.E.2d 376, 383 (2000) (defense counsel's
statement that there was no disagreement about the defendant's
prior convictions “might reasonably be construed as an admission by
defendant that he had been convicted of the other charges appearing
on the prosecutor's work sheet[]”).
In the case
sub judice, Defendant's counsel stipulated as to
Defendant's prior convictions. The State gave the trial court a
worksheet listing Defendant's prior convictions. Defense counselclearly stated that he had no questions about the worksheet except
regarding a larceny by trick charge. When probed by the trial
court, however, defense counsel did not desire a closer look at
that case file and agreed to the length of time for which Defendant
had been imprisoned for that charge.
Because defense counsel
stipulated as to Defendant's prior convictions and such a
stipulation is considered reliable proof of prior convictions, we
find no error.
For the reasons stated herein, we uphold Defendant's
convictions.
No prejudicial error. Affirmed.
Judges HUDSON and ELMORE concur.
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