An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-262


Filed: 3 February 2004


v .                         Mecklenburg County
                            No. 02 CRS 205767-71

    Appeal by defendant from judgment entered 6 November 2002 by Judge W. Robert Bell in Superior Court, Mecklenburg County. Heard in the Court of Appeals 3 December 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Christine M. Ryan, for the State.

    Mary Exum Schaefer for defendant-appellant.

    McGEE, Judge.

    Defendant was indicted by a grand jury on 18 February 2002 for possession of drug paraphernalia, conspiracy to traffic in cocaine, trafficking in cocaine, maintaining a place to keep controlled substance, and possession of a schedule VI controlled substance. A jury found defendant guilty of all five counts on 6 November 2002. The trial court imposed a sentence of thirty-five to forty-two months in prison and a $50,000 fine. All of the convictions were consolidated for sentencing purposes under defendant's conviction of trafficking in cocaine.
    The State's evidence at trial tended to show that at approximately 6:13 p.m. on 6 February 2002, Officer Steven Winterhalter (Officer Winterhalter) of the Charlotte-MecklenburgPolice Department saw defendant's car stopped in the roadway. The evening was dark and rainy. Officer Winterhalter was concerned that defendant was in need of assistance and he activated his car's blue lights and shined a spotlight on defendant's vehicle. He observed that the vehicle was occupied and as he drew nearer the vehicle, he witnessed "furtive" movements from the passenger side of the front seat toward the console and other passenger seat areas within the car.
    Defendant was seated in the driver's seat and Patrick Hamilton, defendant's brother, was seated in the front right passenger seat. When defendant rolled down his window, Officer Winterhalter detected a strong odor of marijuana emanating from the vehicle and observed what he believed to be a marijuana "blunt" in the ashtray. After radioing for an additional police unit, Officer Winterhalter asked defendant for his driver's license and vehicle registration. Defendant provided his identification card from his wallet, his driver's license from the visor above his head, and the vehicle registration.
    When Officer A.J. Watkins (Officer Watkins) arrived, Officer Winterhalter informed defendant that he smelled marijuana and requested defendant exit the vehicle. Defendant consented to a search of his person and Officer Winterhalter found $623 in cash. Officer Winterhalter placed defendant in his police car.
    Officer Winterhalter returned to defendant's vehicle and observed a box of plastic bags on the back seat. Patrick Hamilton was subsequently searched and he was placed in Officer Watkins'spolice car. Both officers searched defendant's vehicle. Officer Winterhalter examined the "blunt" and confirmed, based on his experience and training, that it contained marijuana. The officers found a plastic bag containing cocaine partially stuffed between the front passenger seat and console and a second bag of cocaine under the front left corner of the front passenger seat. White powder was spilled on the floorboard of the front passenger side as well as on the right side of the driver's seat. The officers' search resulted in the discovery of a digital scale on the floorboard of the passenger side, a razorblade in the console, 10.5 grams of marijuana in the change compartment to the left of the steering column, a white bottle labeled "super mannitol," and a flour sifter with a white powder residue in the trunk. Officer Winterhalter knew from his training and experience that mannitol, commonly used as a laxative or sweetener, was often mixed with a controlled substance to increase its volume and decrease its purity. A total of 99.85 grams of cocaine were found in the vehicle. The officers photographed the interior of the vehicle.
    Defendant explained that he was waiting to bring the car to a nearby wrecker yard, that the mannitol was for his use, and that all the white powder was only mannitol. As he was being transported to the law enforcement center, defendant stated that he knew better than to have the "real thing" and was simply selling mannitol to individuals who believed it to be cocaine. Defendant also indicated to Officer Winterhalter that he had been previously incarcerated. Officer Watkins delivered Patrick Hamilton to thelaw enforcement center.
    At the law enforcement center, defendant was read his Miranda rights by Officer Jamie Almond (Officer Almond) and defendant requested an attorney. Officer Almond terminated the interview and left the room. Shortly thereafter, defendant requested Officer Almond's presence and Officer Almond responded. Defendant asked what were the charges against him and his brother. Officer Almond told defendant that they were to be charged with trafficking in cocaine. Defendant asserted that the mannitol was his alone, that his brother had no knowledge of it, and that defendant had obtained the substance from a stump near the roadway where he had stopped.     Defendant presented no evidence at trial. Defendant appeals.
    In his first assignment of error, defendant contends that the trial court committed plain error by improperly instructing the panel of prospective jurors during voir dire on the presumption of innocence.
    N.C.R. App. P. 10(c)(4) provides that
        [i]n criminal cases, a question which was not preserved by objection noted at trial and which was not 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.

However, a prerequisite to this Court engaging in a plain error review, which is narrow in scope, is the determination that the jury instruction constitutes "error" at all. State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed 2d 77 (1986); State v. Bailey, 157 N.C. App. 80, 84, 577S.E.2d 683, 687 (2003)(citations omitted).     
    In explaining the legal concept of the presumption of innocence to the pool of prospective jurors in this case, the trial court stated:
        Under our system of justice a defendant who pleads not guilty is not required to prove his innocence but is presumed to be innocent. This presumption remains with the defendant throughout the trial until the jury selected to hear the case is convinced from both the facts and the law beyond a reasonable doubt of the guilt of defendant. [T. pp. 10-11]

Defendant failed to object to the instruction at trial, but now argues that the trial court's instruction amounted to an improper comment by the trial court as to the guilt of defendant, in violation of N.C. Gen. Stat. § 15A-1222. Defendant points to the inclusion of the word "until" in the instruction as an indication to the jury by the trial court that the trial court regarded defendant's guilt to be a foregone conclusion. Defendant suggests that the trial court should have instructed the jury that the presumption of innocence remains with defendant unless at some point the jury determines defendant's guilt of the crime charged.
    "'[I]n evaluating whether a judge's comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.'" State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578 (quoting State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)), cert. denied, 354 N.C. 575, 559 S.E.2d 184 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002). When a defendant argues that the trial court's comments denied him a fair trial, it is a defendant's burden to show prejudice in orderto receive a new trial. Anthony, 354 N.C. 372, 555 S.E.2d 557.
    In this case, defendant presents no direct argument as to why the trial court's use of "until" resulted in an impermissible suggestion by the trial court indicating defendant's culpability. The phrase "innocent until proven guilty" is among the most common of legal phrases in our lexicon and is often repeated in the decisions of our appellate courts. Compare State v. Cunningham, 333 N.C. 744, 746, 429 S.E.2d 718, 719 (1993)("[W]e review the entire, albeit lengthy, transcript of her voir dire testimony regarding defendant's right to be presumed innocent until proven guilty by the State."); State v. Williams, 288 N.C. 680, 688, 220 S.E.2d 558, 565 (1975)("There is no vested right to the rule of evidence that everyone shall be presumed innocent until proved guilty, which prevents the legislature . . . ." (citations omitted)). In State v. Mabery, 283 N.C. 254, 255, 195 S.E.2d 304, 305 (1973), our Supreme Court found no error with the trial court's instruction which stated, "I will preface that instruction by saying that the defendant is presumed to be innocent until the contrary, that is, his guilt is proved to your satisfaction beyond a reasonable doubt." See also State v. Brackett, 218 N.C. 369, 11 S.E.2d 146 (1940). More recently, our Supreme Court once again found no error with the trial court's instruction that "[t]he defendant is presumed to be innocent. This presumption goes with him throughout the trial and until the jury is satisfied of his guilt beyond a reasonable doubt." State v. Miller, 344 N.C. 658, 671, 477 S.E.2d 915, 923 (1996).    There is no constitutional or statutory requirement that the trial court employ certain words or phrases in instructing the jury on the meaning of reasonable doubt. See Id. (citing Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583 (1994) ). The idiom, "innocent until proven guilty," is fundamental to our societal and legal conceptions of reasonable doubt. We conclude that the trial court did not err. Defendant's assignment of error number two is without merit.
    Defendant next assigns error to the trial court's decision to permit the State to redact the co-defendant's statement to Officers Winterhalter and Almond as recorded in their respective police reports. Neither the State nor defendant called the co- defendant, Patrick Hamilton, as a witness. At the time of defendant's trial, his co-defendant had pled guilty and was imprisoned.
    In support of the State's motion to redact those portions from the officers' reports relaying the comments of the co-defendant explaining the events of 6 February 2002, the State correctly argued that such comments amounted to hearsay under the circumstances and were thus inadmissible.
        A prosecutor is prohibited by the Sixth Amendment to the United States Constitution and Article I Section 23 of the North Carolina Constitution from introducing any hearsay evidence in a criminal trial unless two requirements are met. The prosecution must show both the necessity for using the hearsay testimony and the inherent trustworthiness of the original declaration.

State v. Gregory, 78 N.C. App. 565, 568, 338 S.E.2d 110, 112(1985), disc. review denied, 316 N.C. 382, 342 S.E.2d 901 (1986); State v. McNeill, 140 N.C. App. 450, 459, 537 S.E.2d 518, 524 (2000). The State is under no compulsion to offer hearsay evidence in its case-in-chief.
    Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218 (1963) , mandates that the State disclose "evidence [that] is material either to guilt or to punishment." The State here complied with Brady and presented the officers' statements in their entirety to defendant prior to trial and within the appropriate time. Even assuming arguendo that the co-defendant's statements were in fact exculpatory, we fail to see merit in defendant's argument that the State was somehow compelled to then offer that evidence at trial. No barrier existed to prevent defendant from proffering the evidence at trial in his defense either by a subpoena served on the co-defendant or by an applicable hearsay exception.
    Furthermore, we find defendant's interpretation of the jury's questions regarding the redacted reports to be misplaced. The jury read the officers' reports during trial, but was not in possession of the reports at the time of deliberations. The jury submitted to the trial court a question reading: "Is the redact[ed] report in its entir[e]ty allowed to be consider[ed] by the jury as evidence?" Not fully understanding the jury's question, the trial court had the jury return to the courtroom. The dialogue that followed indicated that the jury was inquiring whether it might consider the oral statements contained in the officers' reports. The jury didnot request to actually have access to the unredacted portions of the reports. This assignment of error is overruled.
    In his final assignment of error, defendant contends that the trial court erred by denying his motion for a mistrial after Officer Winterhalter testified that defendant "apparently had been in prison before."
    After defendant's arrest, and in transit to the law enforcement center, defendant repeatedly muttered that the white powder was mannitol, to which Officer Winterhalter responded by asking defendant why he possessed the mannitol. Defendant, who had not yet been apprised of his rights, replied that he had been incarcerated for eight years and knew better than to have the "real thing." Defendant's statement was included in the redacted version of Officer Winterhalter's report and the officer paraphrased defendant's response at trial.
    After a hearing outside the presence of the jury, the trial court provided a curative instruction:
        Ladies and gentlemen of the jury, just prior to me sending you into the jury room the defendant had made an objection to a statement by the officer concerning testimony of the officer that included words to the effect apparently [sic] while the defendant was in prison.
        I'm going to overrule the objection but I'm also going to instruct you that you may not convict the defendant based on something he may or may not have done in the past.

        Do each of you understand that? Let the record reflect that all twelve members of the jury and the alternate have nodded yes.

    Upon review of the transcript, there appear to be twostatements by defendant at issue. The first involves defendant's remark that "he knew better than to have the real thing." That statement was deemed admissible by the trial court as a hearsay exception, although the trial court did not specify what exception applied. The second statement by defendant concerns Officer Winterhalter's testimony at trial which indicated defendant's past criminal history. The officer based his testimony upon defendant's response that he had been previously incarcerated. This later matter is the one contested by defendant upon appeal. Defendant explicitly argues that the State was prohibited from introducing evidence of his prior criminal record to impeach him when he did not testify, and that he was thus highly prejudiced by the admission. Defendant presents no argument as to the trial court's determination that statements were admissible as an exception to the hearsay rule. Thus, our inquiry is limited to the admissibility and impact of Officer Winterhalter's testimony as to defendant's criminal record.
    N.C. Gen. Stat. § 15A-1061 (2003) proscribes that "[t]he judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error . . . resulting in substantial and irreparable prejudice to the defendant's case." Even assuming that the trial court erred in permitting Officer Winterhalter to testify as to defendant's criminal history, after a careful review of the record as a whole, we conclude that the admission resulted in no prejudicial effect. See State v. Wilson, 311 N.C. 117, 128, 316 S.E.2d 46, 53 (1984) (witnesses' references to defendant's pastincarceration were inadmissible where the defendant did not testify, but even cumulatively the testimony admitted in error failed to amount to a prejudicial effect); State v. Morgan, 111 N.C. App. 662, 668, 432 S.E.2d 877, 881 (1993) (evidence of the defendant's reputation as a drug dealer was inadmissible under the circumstances, but given the great weight of evidence against him, there was no reasonable possibility the jury would have concluded otherwise). The trial court provided an appropriate curative instruction, and we presume the jury followed that instruction. State v. Allen, 141 N.C. App. 610, 615, 541 S.E.2d 490, 494 (2000), disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001). In light of the overwhelming evidence against defendant and the trial court's curative instruction, we fail to see any reasonable possibility that the jury would have held differently. See Morgan, 111 N.C. App. 662, 432 S.E.2d 877. Defendant's assignment of error number three is overruled.
    Finally, defendant has failed to present any argument in support of his assignment of error number four and it is therefore deemed abandoned. N.C.R. App. P. 28(b)(6).
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***