STATE OF NORTH CAROLINA
v
.
Forsyth County
Nos. 01 CRS 000052
00 CRS 059355
DAVON ALOU JONES
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant.
McGEE, Judge.
Davon Alou Jones (defendant) was convicted on 7 March 2002 of
possession with intent to sell and deliver cocaine and of having
attained the status of habitual felon. The trial court determined
that, as a result of the habitual felon status, the class H felony
was aggravated to a class C felony and sentenced defendant to a
minimum term of 90 months and a maximum term of 117 months in
prison. Defendant appeals.
The State's evidence at trial tended to show that on 7
December 2000, Officer Oliver Gilley (Officer Gilley) of the
Winston-Salem Police Department observed defendant hand a
controlled substance to a man who had walked up to defendant'svehicle. Officer Gilley drove around the block and followed
defendant for about half a mile. Officer Gilley noticed that the
light over defendant's license plate was burned out and initiated
a traffic stop. Defendant gave Officer Gilley his license and
registration, told Officer Gilley that he had earlier received a
warning ticket for the same violation, and showed Officer Gilley
the warning ticket. Officer Gilley returned to his patrol vehicle
to check defendant's license and registration and informed the
police department communications operator that he had observed a
hand-to-hand drug transaction. Officer Mark Hamilton (Officer
Hamilton) arrived to assist Officer Gilley and the two officers
approached defendant's vehicle. Officer Gilley returned
defendant's license and registration and issued him a warning
ticket. Officer Gilley told defendant that he observed defendant
engage in a hand-to-hand transaction and asked if defendant would
consent to a search of his vehicle. Defendant told Officer Gilley
that he did not have any drugs or weapons and that he would allow
a search of his person and his vehicle.
Officer Gilley told defendant to step out, walk to the back of
defendant's car, and to put his hands on the car so that defendant
could be searched. However, defendant ran across the street and
Officer Gilley ran after him. Officer Hamilton called the police
department communications operator, and then followed defendant and
Officer Gilley.
Defendant ran behind several houses, jumped a fence, and fell
as he crossed a yard. Officer Gilley told defendant to stopseveral times. When defendant fell, the officers tried to place
defendant under arrest and a struggle ensued. Officer Gilley
sprayed defendant with pepper spray, but defendant continued to
struggle. During the struggle, Officer Gilley saw defendant put
his right hand into his right front pocket and pull out a clear
plastic bag that held a white rock-like substance that appeared to
be crack cocaine. Defendant emptied much of the bag onto the
ground. It took the officers three to five minutes, and three sets
of handcuffs, to secure defendant.
After defendant was in custody, Officer Gilley and Officer
Hamilton tried to recover the substance that defendant had emptied
onto the ground. The officers picked up the white rock-like
substance and a small bag. Officer Gilley took the substance to
his office, sealed it in a bag, weighed it, put it in a manila
envelope, and placed it in the evidence vault. The officers also
seized three grams of a green leafy substance which appeared to be
marijuana and a $100 bill from defendant.
Agent Ann Hamlin (Agent Hamlin), a special agent with the
State Bureau of Investigation (SBI) drug chemistry lab, testified
that Agent Deena Koontz (Agent Koontz), the SBI special agent in
charge of the drug chemistry section, examined the white substance.
Agent Hamlin, who supervised Agent Koontz, reviewed Agent Koontz's
final report and notes for accuracy. Agent Hamlin rendered an
opinion that was consistent with Agent Koontz's conclusion that the
white substance analyzed by Agent Koontz was cocaine, a schedule II
controlled substance. Defendant testified but ignored direct questions and gave non-
responsive answers. The jury convicted defendant of possession
with intent to sell and deliver cocaine.
The State presented evidence in the habitual felon proceeding
tending to show that defendant had been convicted of three prior
felonies in Forsyth County that would qualify for habitual felon
status in North Carolina: (1) conviction on 16 October 1995 of
felony possession of cocaine; (2) conviction on 5 March 1996 of
possession with intent to sell and deliver cocaine; and (3)
conviction on 3 June 1997 of possession with intent to sell and
deliver cocaine.
Defendant testified regarding his status as an habitual felon
but again ignored direct questions and gave non-responsive answers.
The jury determined defendant had attained the status of habitual
felon.
At the outset, we note defendant has failed to put forth an
argument in support of assignments of error one through five and
assignments of error eight through twelve. Those assignments of
error are therefore deemed abandoned pursuant to N.C.R. App. P.
28(b)(6).
Defendant assigns error to the trial court's admission of
Agent Koontz's lab analysis indicating the identity and quantity of
cocaine, and to the trial court's allowing Agent Hamlin to testify
as to the identification and weight of the cocaine seized by
Officers Gilley and Hamilton. Agent Hamlin testified to the
contents of the report prepared by Agent Koontz, who did nottestify at trial. Defendant contends that the report was
inadmissible hearsay and its admission and Agent Hamlin's testimony
was in violation of the rules of evidence and the Confrontation
Clause of the federal constitution.
The State asserts that the lab analysis was admitted as a
business record; however, we conclude that the lab analysis was
admitted to demonstrate the basis of the expert opinion given by
Agent Hamlin. See generally State v. Golphin, 352 N.C. 364, 467,
533 S.E.2d 168, 235 (2000), cert. denied, 532 U.S. 931, 149 L. Ed.
2d 305 (2001), cert. denied, 358 N.C. 157, 593 S.E.2d 84 (2004).
Because the lab analysis was not admitted for the purpose of
proving the truth of the matter asserted in the document, its
admission does not implicate the prohibition on hearsay evidence.
Such evidence is admitted for the limited purpose for which it was
offered and not as substantive evidence. State v. Huffstetler,
312 N.C. 92, 107, 322 S.E.2d 110, 120 (1984), cert. denied, 471
U.S. 1009, 85 L. Ed. 2d 169 (1985). However, the disclosure of the
basis for an expert's opinion "'is essential to the factfinder's
assessment of the credibility and weight to be given to it.'"
Golphin, 352 N.C. at 467, 533 S.E.2d at 235 (quoting State v.
Jones, 322 N.C. 406, 412, 368 S.E.2d 844, 847 (1988)).
A qualified expert is permitted to testify in the form of an
opinion "[i]f scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue[.]" N.C. Gen. Stat. § 8C-1, Rule 702
(2003). An expert may base his or her opinion on [t]he facts or data in the particular
case . . . [that] may be those perceived by or
made known to him at or before the hearing.
If of a type reasonably relied upon by experts
in the particular field in forming opinions or
inferences upon the subject, the facts or data
need not be admissible in evidence.
N.C.G.S. § 8C-1, Rule 703. Our Supreme Court has held that "[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) ("It is the expert opinion itself, not its
factual basis, that constitutes substantive evidence."), cert.
denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Moreover,
"[i]nherently reliable information is admissible to show the basis
for an expert's opinion, even if the information would otherwise be
inadmissible hearsay." State v. Daughtry, 340 N.C. 488, 511, 459
S.E.2d 747, 758 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d
739 (1996).
Furthermore, in Huffstetler, our Supreme Court reviewed
whether a defendant's Sixth Amendment right of confrontation was
violated when he was not afforded the opportunity to cross-examine
the person who conducted all the tests on which the expert's
opinion was based. Huffstetler, 312 N.C. at 106-08, 322 S.E.2d at
119-21. In Huffstetler, the Supreme Court initially found the
tests were inherently reliable and concluded that 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 accusedto 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,
as did the defendant in the present case,
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 testifying
against him will insure, as in the present
case, 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 (internal citations omitted); see
also State v. Carmon, 156 N.C. App. 235, 244, 576 S.E.2d 730, 737,
aff'd, 357 N.C. 500, 586 S.E.2d 90 (2003) (The defendant's Sixth
Amendment rights were not violated where an agent with the State
Bureau of Investigation testified as to the results of testing done
by another agent since the defendant had the opportunity to cross-
examine the testifying expert.).
In the case before us, after a recitation of Agent Hamlin's
professional credentials, Agent Hamlin was tendered and accepted as
an expert in controlled substance analysis without objection by
defendant. Agent Hamlin, after a thorough review of the
methodology undertaken by Agent Koontz, relied on Agent Koontz's
lab analysis in forming her opinion that the white substance was
cocaine. Her opinion was based on data reasonably relied upon by
others in the field. Carmon, 156 N.C. App. at 244, 576 S.E.2d at
737. Defendant directs this Court to the recent decision by the
U.S. Supreme Court in Crawford v. Washington, ___ U.S. ___, 158 L.
Ed. 2d 177 (2004). In Crawford, the Supreme Court held
inadmissible a tape recording of the out-of-court interrogation by
police of the defendant's wife, who was unavailable to testify at
her husband's criminal trial due to Washington's marital privilege
law. The Supreme Court classified the recording as "testimonial,"
and interpreted the Confrontation Clause to forbid categorically
the admission of testimonial hearsay that had never been subject to
cross-examination.
We fail to see the applicability of Crawford under the
circumstances presented in this case, since it is well established
that an expert may base his or her opinion on tests performed by
others in the field and defendant was given an opportunity to
cross-examine Agent Hamlin as to the basis of her opinion. Thus,
we find that there has been no violation of defendant's right of
confrontation. Defendant's assignments of error number six and
seven are overruled.
Defendant also argues that the trial court erred by failing to
conduct an independent inquiry into defendant's competency. We
disagree.
In this case, two competency hearings were held on 25 October
2001 and 4 March 2002. Prior to the 25 October 2001 hearing, Dr.
Ellen Nicola (Dr. Nicola) evaluated defendant's behavior on 13 July
2001 and found defendant was not capable of proceeding to trial.
Dr. Nicola was uncertain of this conclusion and recommendeddefendant be admitted to Dorothea Dix Hospital (Dorothea Dix) for
further evaluation. A motion and order was issued on 15 August
2001 committing defendant to Dorothea Dix. During defendant's two-
week admission at Dorothea Dix, Dr. Nicole Wolfe (Dr. Wolfe)
observed and interviewed defendant. Dr. Wolfe also observed
defendant on 23 October 2001. At the 25 October 2001 hearing, both
Dr. Wolfe and Dr. Nicola testified as to defendant's capacity to
proceed to trial. Dr. Wolfe testified that defendant was capable
of proceeding to trial and "could cooperate if he felt like it."
Specifically, Dr. Wolfe testified that defendant was: (1) capable
of comprehending his position with respect to the criminal charges
against him, (2) capable of understanding the nature and object of
the proceedings against him, (3) capable of cooperating with his
counsel "if he wanted to," (4) capable of assisting in his defense
in a rational or reasonable manner, and (5) did not have any sort
of mental illness or defect that would prevent him from being
capable of proceeding to trial. Dr. Nicola testified that she
agreed with Dr. Wolfe's opinion. The trial court concluded that
defendant had the capacity to proceed to trial.
Dr. Wolfe reevaluated defendant's capacity to stand trial on
14 February 2002. The trial court held another competency hearing
on 4 March 2002, a day before defendant's trial commenced. At the
4 March competency hearing, Dr. Wolfe testified that defendant was
capable of proceeding to trial. Defendant did not present any
evidence at this hearing. Based on the uncontroverted testimony of
Dr. Wolfe, the trial court found that defendant: (1) understood thenature of the charges against him, (2) was mentally competent to
assist in his defense, (3) did not need any medication for any
mental disease, defect, or illness, (4) was mentally competent to
represent himself if he so chose, (5) had no mental illness,
disease, or defect that would prevent him from doing so, and (6)
was capable of proceeding to trial.
Defendant contends that a bona fide doubt as to his competency
to stand trial was demonstrated by the initial view of Dr. Nicola
that defendant was not competent, by Dr. Wolfe's various admissions
that defendant's writings and conduct made no sense, and by
defendant's constant and continuous erratic behavior and failure to
cooperate with his attorney during any of the pretrial or trial
proceedings. Defendant further contends that the trial court erred
in not holding a new competency hearing. Defendant primarily
relies upon N.C. Gen. Stat. . 15A-1001(a) (2003), which states,
[n]o person may be tried, convicted,
sentenced, or punished for a crime when by
reason of mental illness or defect he is
unable to understand the nature and object of
the proceedings against him, to comprehend his
own situation in reference to the proceedings,
or to assist in his defense in a rational or
reasonable manner.
"When the capacity of the defendant to proceed is questioned,
the court shall hold a hearing to determine the defendant's
capacity to proceed." N.C. Gen. Stat. . 15A-1002(b) (2003). If
the trial court fails to hold a competency hearing once there
arises a bona fide or a sufficient doubt as to the accused's
competence to stand trial, the right to due process is violated.
Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103 (1975). However,"[t]he court's conclusion regarding defendant's capacity is binding
on appeal if supported by the evidence." State v. Aytche, 98 N.C.
App. 358, 363, 391 S.E.2d 43, 46 (1990).
When the trial court, without a jury,
determines a defendant's capacity to proceed
to trial, it is the court's duty to resolve
conflicts in the evidence; the court's
findings of fact are conclusive on appeal if
there is competent evidence to support them,
even if there is also evidence to the
contrary.
State v. Heptinstall, 309 N.C. 231, 234-35, 306 S.E.2d 109, 111
(1983); see also State v. McCoy 303 N.C. 1, 18, 277 S.E.2d 515, 528
(1981).
In Aytche, the trial court heard testimony from defense
counsel that the defendant was unable to assist in his defense,
heard the defendant answer questions regarding his ability to
understand the proceedings, observed the physical appearance of the
defendant, reviewed samples of the defendant's handwriting, heard
testimony from the defendant's jailer, and reviewed the report of
a physician who had seen the defendant on the evening prior to
trial. Aytche, 98 N.C. App. at 362-63, 391 S.E.2d at 45-46. This
Court found that the evidence provided to the trial court was
sufficient to uphold the trial court's conclusion that the
defendant was competent to stand trial. Id. at 363, 391 S.E.2d at
46.
Our Supreme Court upheld the trial court's decision in
Heptinstall that the defendant was capable of proceeding to trial
despite lengthy testimony regarding the defendant's documented
bizarre behavior, numerous commitments to Dorothea Dix Hospital anda mental institution in Florida, and the opinions of family members
and others who knew him that the defendant was "not in his 'right
mind' and was not competent to aid in defending the charges against
him." Heptinstall, 309 N.C. at 233-34, 306 S.E.2d at 110-11. The
trial court made this determination based on testimony from a
forensic psychologist that the defendant was alert, aware of his
surroundings and the charges against him, had a good memory,
appeared to be of normal intelligence, was able to understand the
seriousness of the charges against him, and was capable of
assisting his attorneys in preparing his defense. Id. at 235, 306
S.E.2d at 111. Our Supreme Court found this evidence to be
sufficient to support the trial court's determination. Id.
In the case before us, the trial court had sufficient evidence
to support a finding that defendant was capable of proceeding to
trial. Since it is within the trial court's discretion to
determine a defendant's capacity, the decision will not be
disturbed unless there is no competent evidence to support it.
Heptinstall, 309 N.C. at 234, 306 S.E.2d at 111. The trial court
adequately responded to questions of defendant's capacity by
holding two hearings concerning this issue. The adequacy of the
trial court's response is further supported where a competency
hearing was held the day prior to trial, and where the trial lasted
only three days. The evidence the trial court relied upon, namely
the testimony of a psychiatrist and a psychologist stating
defendant was capable of proceeding to trial, was sufficient for
the trial court to rule defendant was capable of proceeding totrial, even if there was also evidence to the contrary.
Defendant's assignment of error number thirteen is overruled.
In defendant's final argument, defendant contends that the
trial court erred in using defendant's prior conviction of
possession of cocaine as one of the underlying felonies to
establish his status as an habitual felon.
Pursuant to our Supreme Court's rulings in State v. Jones, ___
N.C. ___, 598 S.E.2d 125 (2004) and State v. Sneed, ___ N.C. ___,
___ S.E.2d ___ (2004), defendant's assignment of error is without
merit. In Jones, our Supreme Court concluded:
Under N.C.G.S. . 90-95(d)(2), the
phrase"punishable as a Class I felony" does
not simply denote a sentencing classification,
but rather, dictates that a conviction for
possession of the substances listed therein,
including cocaine, is elevated to a felony
classification for all purposes. Concerning
the controlled substances listed therein, the
specific exceptions contained in section 90-
95(d)(2) control over the general rule that
possession of any Schedule II, III, or IV
controlled substance is a misdemeanor.
___ N.C. at ___, 598 S.E.2d at ___; see also Sneed, ___ N.C. at
___, ___ S.E.2d at ___. The Court also held because N.C.G.S. . 90-
95(d)(2) classifies possession of cocaine as a felony, conviction
for possession of cocaine pursuant to the statute may serve as an
underlying felony for the purpose of obtaining an habitual felon
indictment. Jones, ___ N.C. at ___, 598 S.E.2d at ___.
Accordingly, we find no error in the trial court's use of
defendant's conviction of possession of cocaine as an underlying
felony establishing his status as an habitual felon. Defendant's
assignment of error number fourteen is without merit. No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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