Appeal by defendant from judgments entered 30 October 2002 by
Judge Peter M. McHugh in Guilford County Superior Court. Heard in
the Court of Appeals 28 January 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Steven A. Armstrong, for the State.
Bryant & Krager, P.A., by Duane K. Bryant, for defendant-
appellant.
HUNTER, Judge.
Christopher Rashawn Baker (“defendant”) appeals judgments
sentencing him to 151 to 191 months imprisonment for trafficking by
possession more than fifty pounds of marijuana, trafficking by
transportation more than ten pounds of marijuana, and pleading
guilty to being an habitual felon. For the reasons stated herein,
we conclude the trial court did not err.
On 30 April 2002, Deputy M. H. Carrier (“Deputy Carrier”) of
the Guilford County Sheriff's Department stopped defendant after
observing defendant driving a vehicle without wearing a seatbelt.
When Deputy Carrier asked for defendant's driver's license and
vehicle registration, defendant produced a valid registration, but
responded he did not have his license. Although defendant told thedeputy his North Carolina driver's license number, he was arrested
for failing to actually carry the license while operating a
vehicle.
After securing defendant in the patrol car, Deputy Carrier
searched defendant's vehicle. A substance, believed to be
marijuana, was found in two bags on the front passenger floor
board. Defendant's vehicle was towed away following the search.
Thereafter, Deputy Carrier secured a search warrant for defendant's
residence, which resulted in the seizure of additional contraband.
Defendant was indicted later that day for trafficking by possession
and by transportation of a controlled substance, as well as being
an habitual felon.
On 13 September 2002, defendant filed a motion to suppress all
the fruits of the search of his vehicle and residence. A hearing
was held on 16 September 2002 at which, based on the evidence
offered, the court made the following findings of fact relating to
the events that took place prior to defendant being stopped for the
seatbelt violation:
1) That Deputies with the Guilford County
Sheriff's Department initiated a narcotic
investigation involving the Defendant
based upon information received through a
confidential source.
2) That such investigation included extended
surveillance observations of the
Defendant's activities and background
confirmation of his residential address
and criminal history.
3) That on April 30, 2002 at or about 1:30
pm and in the course of the ongoing
investigation, Deputy M.H. Carrier,
assigned to mobile surveillance of theDefendant, observed that the Defendant
was operating his car . . . while not
wearing his seatbelt, this being in
violation of G.S. 20-135.2A.
4) That Deputy Carrier communicated his
observation to the lead investigating
officer . . . wherein it was determined
that the Deputy would attempt to execute
a traffic stop of the Defendant.
Additional evidence offered at the suppression hearing, but not
listed in the trial court's findings of fact, was that prior to
stopping defendant, Deputy Carrier had observed defendant carrying
two bags to his vehicle that were believed to contain contraband.
Deputy Carrier had also learned from earlier briefings that
defendant was a duly licensed driver in North Carolina. The court
concluded Deputy Carrier (1) had probable cause to stop defendant
for failing to wear a seatbelt, (2) lawfully arrested defendant for
failing to carry a driver's license, and (3) lawfully searched
defendant's vehicle incident to his arrest. Thus, defendant's
motion to suppress was denied.
The matter came on for trial on 28 October 2002. Essentially,
the same evidence presented at the suppression hearing was offered
at trial. Additional evidence presented included the testimony of
SBI chemical analyst Richard Waggoner, Jr. (“Waggoner”), an expert
in forensic chemistry. Waggoner was a “substitute witness” for SBI
chemical analyst H. T. Raney, Jr. (“Raney”), the retiring analyst
that originally tested, identified, and weighed the substances
found in defendant's vehicle and residence. Waggoner testified
that based on his review of the relevant lab reports produced by
Raney, he was of the opinion that the substances found indefendant's vehicle and residence were marijuana in the weights
listed on those reports. Defendant offered no evidence at the
trial.
I.
By his first assignment of error, defendant essentially argues
the trial court erred in denying his motion to suppress the fruits
of both searches because his arrest for failure to carry a driver's
license was a pretext for the initial search. Thus, defendant
contends (1) Deputy Carrier lacked probable cause to arrest him,
(2) the arrest violated his due process rights, and (3) his arrest
was unreasonable under the North Carolina Constitution. We
disagree.
[A] trial court's findings of fact in a
suppression hearing are binding on the
appellate courts when supported by competent
evidence. This Court must determine whether
these findings of fact support the trial
court's conclusions of law, and if so, the
trial court's conclusions of law are binding
on appeal.
State v. West, 119 N.C. App. 562, 565, 459 S.E.2d 55, 57 (1995)
(citations omitted). “An appellate court accords great deference
to the trial court's ruling on a motion to suppress because the
trial court is entrusted with the duty to hear testimony (thereby
observing the demeanor of the witnesses) and to weigh and resolve
any conflicts in the evidence.”
State v. Johnston, 115 N.C. App.
711, 713, 446 S.E.2d 135, 137 (1994).
Here, the evidence offered showed that Deputy Carrier stopped
defendant's vehicle after personally observing defendant operating
that vehicle without wearing a seatbelt. Failure to do soconstitutes an infraction under our general statutes.
See N.C.
Gen. Stat. § 20-135.2A(e) (2003). “In North Carolina an officer
may stop and issue a citation to any motorist who 'he has probable
cause to believe has committed a[n] . . . infraction.'”
State v.
Hamilton, 125 N.C. App. 396, 400, 481 S.E.2d 98, 100 (1997)
(quoting N.C. Gen. Stat. § 15A-302(b) (1988)).
After stopping defendant, Deputy Carrier arrested him for
failing to carry a driver's license while operating a vehicle.
“'[A drivers] license shall be carried by the licensee at all times
while engaged in the operation of a motor vehicle.' Failure to
carry one's license at all times while engaged in the operation of
a motor vehicle is a misdemeanor[]” and provides sufficient
probable cause to place the driver under arrest.
Johnston, 115
N.C. App. at 714-15, 446 S.E.2d at 138 (citations omitted).
Therefore, simply because Deputy Carrier knew that defendant had a
valid driver's license (though not in defendant's possession), did
not negate this statutory requirement or diminish probable cause to
support defendant's arrest.
Finally, the evidence showed that immediately following
defendant's arrest, Deputy Carrier searched defendant's vehicle and
found two bags of marijuana. “Incident to a lawful arrest, an
officer may search the passenger compartment of a vehicle and the
containers therein without a search warrant.”
State v. Cornelius,
104 N.C. App. 583, 588, 410 S.E.2d 504, 508 (1991) (citing
New York
v. Belton, 453 U.S. 454, 460, 69 L. Ed. 2d 768, 775 (1981)). Accordingly, defendant's contentions as to his first assigned error
are without merit, and the motion to suppress was properly denied.
II.
Defendant also assigns error to the trial court allowing
Waggoner to testify regarding the identification and weight of the
substances seized as a “substitute witness” for Raney, the retiring
analyst that actually accumulated the data and produced the lab
reports. Defendant initially contends the State did not follow the
proper procedure for the independent admission of Raney's reports
because the State failed to provide advance written notice of its
intent to admit the reports in Raney's absence.
See N.C. Gen.
Stat. § 90-95(g) (2003). While the record does not indicate the
State complied with Section 90-95(g), the trial transcript clearly
indicates that the actual reports were never admitted into evidence
by the State. Thus, the reports were simply used by Waggoner in
reaching his expert opinion as to whether the substances seized
were actually marijuana in the weights determined.
Defendant further contends the trial court erred in allowing
testimony by Waggoner concerning lab reports produced by Raney.
Defendant asserts that (1) the reports on which Waggoner's
testimony was based were inadmissible hearsay, and (2) defendant's
Sixth Amendment confrontation rights were violated because he was
not allowed to confront and cross-examine Raney. We disagree.
“It has been held traditionally that an expert's opinion is
not admissible if based on hearsay evidence.”
State v.
Huffstetler, 312 N.C. 92, 106, 322 S.E.2d 110, 119 (1984). However, “[a]n expert may properly base his or her opinion on tests
performed by another person, if the tests are of the type
reasonably relied upon by experts in the field.”
State v. Fair,
354 N.C. 131, 162, 557 S.E.2d. 500, 522 (2001),
cert. denied, 535
U.S. 1114, 153 L. Ed. 2d 162 (2002). The expert's opinion may also
be based on facts that would otherwise be inadmissible.
Id. In
either instance, “the basis for the expert's opinion is not
hearsay, since it is not offered as substantive evidence.”
Huffstetler, 312 N.C. at 107, 322 S.E.2d at 120.
Morever, in
Huffstetler, our Supreme Court addressed whether
a defendant's Sixth Amendment right to confront his accuser was
violated when he could not cross-examine the person who actually
performed all the tests on which an expert witness based her
opinion. After determining the tests were inherently reliable, the
Huffstetler Court used the following analysis to conclude the
defendant's constitutional right was not violated:
The admission into evidence of expert
opinion based upon information not itself
admissible into evidence does not violate the
Sixth Amendment guarantee of the right of an
accused to confront his accusers where the
expert is available for cross-
examination. . . . In such cases the
defendant will have the right to fully
cross-examine the expert witness who testifies
against him. He will be free to vigorously
cross-examine the expert witness . . .
concerning the procedures followed in
gathering information and the reliability of
information upon which the expert relies in
forming his opinion. The jury will have
plenary opportunity . . . to understand the
basis for the expert's opinion and to
determine whether that opinion should be found
credible. The opportunity to fully
cross-examine the expert witness testifyingagainst him will insure . . . that the
defendant's right to confront and
cross-examine his accusers guaranteed by the
Sixth Amendment is not denied.
Id. at 108, 322 S.E.2d at 120-21.
See also State v. Carmon, 156
N.C. App. 235, 576 S.E.2d 730,
per curiam aff'd, 357 N.C. 500, 586
S.E.2d 90 (2003).
In the case
sub judice, Waggoner was tendered and accepted
without objection as an expert on the testing of controlled
substances. Thereafter, Waggoner testified that he could render an
expert opinion based on lab reports produced by Raney because the
reports were inherently reliable in analyzing and subsequently
identifying controlled substances. His testimony laid a sufficient
foundation to support the admission of his expert opinion, and
defendant does not argue that Waggoner was not qualified to rely on
those reports to give opinion testimony.
See State v. Gary, 78
N.C. App. 29, 38, 337 S.E.2d 70, 76 (1985). Following Waggoner's
opinion testimony, defendant's counsel vigorously cross-examined
Waggoner as to the chain of custody of the substances (marijuana)
found in defendant's vehicle and residence, the way in which the
substances were subsequently received by the testing lab, and the
procedures followed by the lab analyst in determining the identity
and weight of those substances. From all this testimony, the jury
had ample opportunity to determine whether the basis for Waggoner's
expert opinion was credible. Thus, the trial court did not err in
admitting Waggoner's expert testimony or violate defendant's Sixth
Amendment rights by doing so.
No error. Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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