An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-647


Filed: 20 July 2004


v .                         Cabarrus County
                            No.    99 CRS 8182
JONAS TYRONE DAVIS                     01 CRS 18167

    Appeal by defendant from judgment entered 30 August 2002 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 1 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott, for the State.

    David Childers for defendant-appellant.


    Jonas Tyrone Davis (“defendant”) appeals his convictions for possessing cocaine and attaining habitual felon status. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.
    The facts and procedural history pertinent to the instant appeal are as follows: At approximately 2:45 a.m. on 22 May 1999, defendant was traveling north on Highway 49 in Cabarrus County, North Carolina. Cabarrus County Sheriff's Department Deputy David Scott Stewart (“Deputy Stewart”) noticed defendant's vehicle weaving in its own lane as the vehicle passed him on Highway 49. Deputy Stewart followed defendant's vehicle and observed the vehicle continuing to weave within its own lane. Deputy Stewartcontinued to follow the vehicle as it turned onto Zion Church Road, where he observed the vehicle traveling at a speed of thirty-five miles per hour in a forty-five miles per hour zone. Over the next mile and a half, Deputy Stewart observed the vehicle cross the center line of Zion Church Road on four occasions. Immediately after the fourth instance, Deputy Stewart activated his patrol car's blue lights and initiated a vehicle stop.
    Deputy Stewart approached defendant's vehicle and detected a faint odor of alcohol while talking to defendant. Deputy Stewart also noticed that defendant had glassy eyes and mumbled speech. Defendant denied that he had been drinking, but admitted that he had smoked marijuana earlier during the evening. After requiring defendant to exit the vehicle, Deputy Stewart observed defendant leaning on the vehicle for support. Deputy Stewart then administered road-side sobriety tests which defendant was unable to perform. After a check of defendant's driving record revealed that defendant's license had been revoked, Deputy Stewart arrested defendant for driving with a revoked license and for driving while impaired.
    While performing a pat-down search of defendant, Deputy Stewart discovered in defendant's front vest pocket what subsequent laboratory analysis identified as marijuana and crack cocaine. Immediately after the search, defendant was taken to Northeast Memorial Center to have a sample of his blood drawn. Prior to administering the test, Concord Police Department Officer Jeffery Carlisle Worth (“Officer Worth”) advised defendant of his rightspertaining to the test. The blood test revealed the presence of both cocaine and marijuana in defendant's blood.
    Defendant was indicted on 23 August 1999 for possession of cocaine. On 1 October 2001, an indictment alleging habitual felon status was issued against defendant. On 10 December 2001, a superceding indictment again alleging habitual felon status was issued against defendant. Defendant was first tried the week of 8 April 2002. On 10 April 2002, after concluding that the jury was unable to reach a unanimous verdict in defendant's trial, the trial court declared a mistrial. Defendant was tried again the week of 24 June 2002. At his second trial, a jury found defendant guilty of possession of cocaine and guilty of habitual felon status. It is from these convictions that defendant appeals.

    We note initially that defendant's brief contains arguments supporting only five of his original eleven assignments of error. Pursuant to North Carolina Rule of Appellate Procedure 28(b)(6) (2004), the six omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by defendant for appeal.
    The issues presented on appeal are whether the trial court erred by (I) denying defendant's motion to suppress the evidence obtained during the investigatory stop; (II) adopting the previous findings of fact, conclusions, and rulings of law made at defendant's first trial; (III) admitting into evidence the results of defendant's blood test; and (IV) denying defendant's motion todismiss the habitual felon indictment.
    Defendant first argues that the trial court erred by denying his motion to suppress the evidence obtained as a result of the investigatory stop. Defendant contends that Deputy Stewart lacked the requisite cause to stop and detain defendant. We disagree.
    “An officer's stop of a car to investigate a potential traffic offense does not require a complete showing of probable cause because of its limited intrusiveness, but as a limited seizure it is governed by the reasonableness standards of the Fourth Amendment.” State v. Jones, 96 N.C. App. 389, 394, 386 S.E.2d 217, 220 (1989), appeal dismissed and disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990). This Court has explained these standards before, notably in State v. Trapper, where we stated:
        [C]onsistent with the Fourth and Fourteenth Amendments, a person or vehicle may be detained for further investigation by a law enforcement officer without a warrant and without probable cause to believe a crime has been committed if the officer has a reasonable suspicion, that can be articulated, that a crime is being committed.

48 N.C. App. 481, 486, 269 S.E.2d 680, 683, appeal dismissed, 301 N.C. 405, 273 S.E.2d 450 (1980), cert. denied, 451 U.S. 997 (1981); see State v. Drewyore, 95 N.C. App. 283, 288, 382 S.E.2d 825, 828 (1989). In examining the reasonableness of such a seizure, this Court views the “totality of the circumstances” and weighs the detaining officer's articulated reasons “'through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (quoting United States v. Hall, 525 F.2d 857,859 (D.C. Cir. 1976)), cert. denied, 444 U.S. 907 (1979). If the circumstances show there was an objective justification for a police officer's stop -- something more than an “unparticularized suspicion or hunch” -- a reasonable detention and investigation of the suspect is allowed. United States v. Sokolow, 490 U.S. 1, 7 (1989).
    In the instant case, defendant contends that Deputy Stewart's decision to perform an investigatory stop was rooted in a generalized suspicion or hunch, and that therefore any evidence obtained during the stop should have been suppressed. Defendant asserts that Deputy Stewart formed his hunch after witnessing defendant's vehicle weave in its own lane while traveling north on Highway 49. According to defendant, “Deputy Stewart's initial reason for deciding to follow [defendant] is what matters, because it is at that moment [Deputy Stewart] began to act with the intention of seizing and detaining [defendant].” In so arguing, defendant attempts to limit this Court's review of Deputy Stewart's reasons for making the stop to Deputy Stewart's initial observations of defendant's vehicle. However, defendant cites no authority to support his contention that police officers must have reasonable articulable suspicion of criminal activity in order to travel behind a citizen on a public road, and we find no authority that so limits this Court's review of a law enforcement officer's decision to perform an investigatory stop to the officer's initial observations.
    Defendant maintains that weaving in one's own lane of travelis not sufficient to justify an investigatory stop. While weaving in one's own lane of travel is not a per se violation of the motor vehicle laws of North Carolina, this Court has previously held that weaving in one's own lane of travel is sufficient to raise the suspicion of impairment when other circumstances are present. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (stop justified when defendant observed driving twenty miles per hour under the speed limit and weaving within own lane). In the instant case, Deputy Stewart not only observed defendant's vehicle weaving within its own lane for over half a mile, he also observed defendant's vehicle cross the center line while traveling ten miles an hour below the posted speed limit. We conclude these facts are sufficient to establish a reasonable suspicion that the driver of the vehicle is impaired. Therefore, we hold the trial court did not err in denying defendant's motion to suppress the evidence obtained as a result of the investigatory stop.
    Defendant next assigns error to the second trial court's adoption of the findings of fact, conclusions, and rulings of law made at the voir dire hearing during defendant's first trial. Defendant argues that because he was never given an opportunity to present new or different evidence concerning the investigatory stop, his second trial was unfairly prejudiced. We disagree.
    This Court has previously held that absent a showing that additional or different evidence can be produced, a second voir dire hearing is not required during a defendant's second trial if a voir dire hearing was properly held during the defendant's firsttrial. State v. Moses, 52 N.C. App. 412, 415, 279 S.E.2d 59, 62, disc. review denied, 303 N.C. 318, 281 S.E.2d 390 (1981); State v. Sellers, 52 N.C. App. 380, 397, 278 S.E.2d 907, 919, disc. review denied and appeal dismissed, 304 N.C. 200, 285 S.E.2d 108 (1981). In Sellers, the trial court held a voir dire hearing on the admissibility of two in-court identifications of the defendant during the defendant's first trial. After his first trial ended in a mistrial, the defendant was subsequently retried and convicted of kidnapping, armed robbery, assault with a deadly weapon, and rape. On appeal to this Court, the defendant assigned error to the second trial court's denial of his motion for a second voir dire hearing on the admissibility of the identifications. We affirmed the trial court's decision, concluding that “no voir dire hearings were necessary unless there was some showing by defendant that he could offer evidence that would be different from that given at the first hearing.” Sellers, 52 N.C. App. at 397, 278 S.E.2d at 919.
    As in Sellers, we conclude that a second voir dire hearing was not required in the instant case. During defendant's first trial, the trial court conducted a voir dire hearing on the admissibility of evidence seized during the investigatory stop and denied defendant's motion to suppress the evidence on 8 April 2002. During defendant's second trial, the following exchange occurred on 29 August 2002:

        COUNSEL:    Your Honor, I just want to bring to the Court's attention that a motion to suppress evidence from the stop and from the search was filed previous to today. I don't know exactly what date it was filed on. It was heard on a previous occasion. I just wanted the Court's guidance as to whether that will be heard again or whether that will stand as the ruling on those issues.
        COURT:    The Court will adopt as its own findings of fact and conclusions of law the order entered by Judge Clarence E. Horton, Jr., denying the motion to suppress.

It was at this point that defendant should have indicated that he could offer new evidence concerning the investigatory stop that was not offered during the previous voir dire hearing. It was neither the responsibility of the trial judge nor the prosecution to ask defendant whether new or additional evidence would be presented at a second voir dire evidentiary hearing; instead, it was defendant's responsibility to indicate that new or additional evidence would be forthcoming were another voir dire hearing held. The record before us reflects no such indication by the defendant. Therefore, we find no error in the trial court's adoption of the previous rulings of law made during defendant's first trial.
    Defendant next argues that the trial court erred by admitting into evidence the results of defendant's blood test. Defendant concedes that he failed at trial to properly preserve this alleged error for appellate review. However, defendant maintains that the trial court's decision to admit the results of his blood test into evidence constituted plain error requiring a new trial. We disagree.
    Courts apply the plain error rule only in the exceptional case, where:        after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018 (1982) (footnotes omitted)) (emphasis in original). Therefore, although a defendant may assign plain error on appeal without having objected to an issue at trial, the test for plain error “places a much heavier burden upon the defendant [claiming plain error] than that imposed . . . upon defendants who have preserved their rights by timely objection.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). In our opinion, defendant has not met this heavy burden in the instant case.
    In support of his plain error contention, defendant asserts that there was insufficient evidence produced at trial to establish that he was advised of his rights concerning the blood test before it was administered. N.C. Gen. Stat. § 20-16.2 (2003) requires that before any type of chemical analysis is administered on an individual, the chemical analyst must notify the individual both orally and in writing of his or her rights pertaining to theanalysis. Defendant contends that the absence of a rights-waiver in the trial court record indicates that the State failed to prove that defendant was advised of his rights prior to the test. However, Officer Worth testified during defendant's second trial that he was the chemical analyst who administered the blood test on defendant at the time of his arrest. Twice during his direct testimony Officer Worth recalled orally advising defendant of his rights pertaining to the blood test, and during cross-examination he described the “blood rights” listed on a standard form provided to defendant and included in the blood analysis kit. On redirect examination, Officer Worth testified to the presence of the initials “J.D.” on the “signature of the subject” line of the kit. We conclude that this testimony is sufficient to establish that defendant was advised of his rights. See State v. Carpenter, 34 N.C. App. 742, 744, 239 S.E.2d 596, 597 (1977) (rejecting argument that defendant was not advised of rights where the administering analyst provided uncontested testimony that he orally advised defendant of the rights and placed a written statement of the rights before defendant), disc. review denied, 294 N.C. 183, 241 S.E.2d 518 (1978).
    Defendant also asserts that the blood test results were irrelevant to the possession of cocaine charge, and that admission of the results produced an unfairly prejudicial effect on his trial. We disagree.
    While “[e]vidence without any tendency to prove a fact in issue is inadmissible, . . . the admission of such evidence is notreversible error unless it is of such a nature as to mislead the jury.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). Thus, “[t]he admission of irrelevant evidence is generally considered harmless error.” Id. Defendant contends that the blood test results showing trace amounts of cocaine in his bloodstream when he was arrested were irrelevant to his charge of cocaine possession. However, assuming arguendo that the results of the blood test were irrelevant on the issue of cocaine possession and were improperly admitted into evidence, we conclude that defendant has failed to carry his burden of showing any prejudice resulting from the admission of this evidence.
    The evidence in the instant case overwhelmingly established that defendant was in possession of cocaine when arrested. Deputy Stewart testified that a search of defendant incident to his arrest for driving under the influence yielded two off-white rocks believed by the officer to be illegal controlled substances. Defendant acknowledged that substances had been removed from his vest pocket, but he asserted that the substances were crumbs from bread or a biscuit that he had been carrying in the vest pocket earlier that evening. However, subsequent laboratory tests performed on the substances by the State Bureau of Investigation's toxicology unit identified the substances as crack cocaine. Neither the methodology of the tests nor the chain of custody of the tested substances was challenged when the results of the tests were admitted into evidence. Accordingly, we conclude there is no reasonable possibility that a different result would have beenreached had the blood test results not been admitted into evidence. Therefore, we hold that the admission of the blood test results did not constitute prejudicial error.
    Defendant's final argument is that the trial court erred in denying his motion to dismiss the habitual felon indictment. Defendant contends that his sentence under the Habitual Felon Act, North Carolina General Statute § 14-7.1 et seq. (2003), is so severe that it is disproportionate to the underlying offenses.
    In State v. Todd, 313 N.C. 110, 118, 326 S.E.2d 249, 253 (1985), our Supreme Court held that the Habitual Felon Act comports with a criminal defendant's federal and state constitutional guarantees. When found to be a habitual felon, a defendant generally must be sentenced as a Class C felon. N.C. Gen. Stat. § 14-7.6 (2003).
    In the instant case, defendant was found to be a habitual felon by virtue of his previous felony convictions. Defendant was sentenced to a term of 115 months to 147 months incarceration. The sentence is within the range allowed by N.C. Gen. Stat. . 15A- 1340.17 (2003). In light of defendant's felony convictions and this state's present statutory and case law, we conclude that defendant's sentence must be upheld. See State v. Hodge, 112 N.C. App. 462, 468, 436 S.E.2d 251, 255 (1993) (imposition of a fourteen year sentence for habitual felon convicted of crack cocaine possession who could have received a fifty year sentence is not excessive under Eighth Amendment); State v. Aldridge, 76 N.C. App. 638, 640, 334 S.E.2d 107, 108 (1985) (imposition of a thirty yearsentence for habitual felon who could have received life sentence not excessive under Eighth Amendment). Accordingly, we hold that the trial court did not err in denying defendant's motion to dismiss the habitual felon indictment. Furthermore, in light of our Supreme Court's recent decision in State v. Jones, ___ N.C. ___, ___ S.E.2d ___ (2004), we also hold that the trial court did not err in sentencing defendant as a habitual felon based upon his prior and instant convictions for possession of cocaine.
    No error.
    Judges WYNN and LEVINSON concur.
    Report per Rule 30(e).

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