State v Coppage, (03-1205) 06/15/2004

    On 25 May 2001, Detective Shannon Stewart (“Detective Stewart”) of the Pitt County Sheriff's Department responded to a call of a suspicious person running through yards on Bluebird Lane in Greenville, North Carolina. As Detective Stewart was talking with the woman who reported the suspicious person, defendant jumped over a fence and ran through the woman's yard. Detective Stewart, along with other officers, began chasing defendant. Defendant raninto a barn located on a neighbor's property. Detective Stewart and Deputy Tim Daugherty (“Deputy Daugherty”) entered the barn and discovered defendant hiding under a pile of blankets. Defendant was handcuffed and given a drink of water from a water hose located near the barn.
    As defendant bent over to drink from the hose, Detective Stewart observed an object fall out of defendant's shorts and onto the ground. Deputy Daugherty picked the object off the ground and identified it as a plastic bag with a light colored powder inside. The officers suspected the contents of the bag to be cocaine, and the package was sent to the State Bureau of Investigation (“SBI”) lab for testing. The tests revealed the substance to be 9.9 grams of cocaine.
    At the close of the State's evidence, defendant moved to dismiss all charges. The trial court denied this motion, and defendant presented no evidence. Defendant renewed his motion to dismiss, and the trial court again denied the motion. The jury found defendant to be guilty of possession with intent to sell and deliver cocaine and misdemeanor breaking or entering. Defendant was found not guilty on the other count of misdemeanor breaking or entering. Defendant was sentenced to fifteen to eighteen months for possession with intent to sell and deliver cocaine and forty- five days for misdemeanor breaking and entering. Defendant appeals.

    Defendant contends that he received ineffective assistance of counsel at trial as his attorney failed to: (1) cross-examine witnesses; (2) object to admission of exhibits; (3) voir dire the State's expert witness; and (4) object to the jury instructions. Defendant argues that because defendant is serving a life sentence for first-degree murder, his attorney did not try to provide him with a “zealous, competent defense.” We disagree.
    State v. Braswell sets out a two-part test to resolve issues regarding ineffective assistance of counsel. 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985).
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). The defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 563, 324 S.E.2d at 248. Ineffective assistance of counsel claims are “not intended topromote judicial second-guessing on questions of strategy . . . .” State v. Adams, 156 N.C. App. 318, 325-326, 576 S.E.2d 377, 383, disc. rev. denied, 357 N.C. 166, 580 S.E.2d 698 (2003) (quoting Sallie v. North Carolina, 587 F.2d 636, 640 (4th Cir. 1978)).
    Here, defendant cites eight instances to support ineffective assistance of counsel, and alleges his attorney:
        (1) Failed to cross-examine Detective Shannon Stewart regarding his observations, communications and actions on 25 May 2001, as well as on his identification of the defendant prior to apprehension and his lack of information regarding the actual owners of the building defendant supposedly broke into [sic];

        (2) Failed to cross-examine Sergeant Marty Burroughs regarding his observations, communications and actions on 25 May 2001, as well as on his identification of the defendant prior to apprehension and his lack of information regarding the actual owners of the building defendant supposedly broke into [sic];

        (3) Failed to object to the introduction of State's Exhibits 3 and 4, through Deputy Daughtry, on the grounds that an insufficient chain of custody had been demonstrated, and that the weight recorded by the Deputy was greatly different from that recorded by the SBI lab;

        (4) Failed to object to the introduction of State's Exhibits 1 and 2 on the same grounds;

        (5) Failed to conduct a voir dire of the State's expert witness, Robert Evans, to establish the expertise necessary to opine what constitutes a “dosage unit” of powder cocaine, and failed to conduct a voir dire in general after being offered the opportunity by the court;

        (6) Failed to object to Evans' testimony regarding a “dosage unit” of powder cocaine, as it directly impacted whether a jury wouldfind that defendant was in possession of more than a “personal use” quantity of cocaine;

        (7) Failed to object to the hearsay testimony by Sergeant Burroughs that a neighbor had given a description of the suspect running through the yards, implicitly providing an out-of-court identification of the defendant by the neighbor, who did not testify;

        (8) Failed to object to the trial court's jury instructions regarding the two breaking and entering charges, in that the trial court did not distinguish between the two offenses and separately instruct the jury regarding the elements necessary to convict.

Defendant does not show how any of the alleged errors were “so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment” or how the alleged errors prejudiced his defense, other than his bald assertion. Braswell, 312 N.C. at 562, 324 S.E.2d at 248.
    Defendant offers no explanation regarding how defense counsel's failure to cross-examine Detective Stewart amounted to a deficiency or prejudiced his defense. Further, defendant offers no explanation regarding the relevancy of the identification of the owners of the building that defendant entered. Defense counsel did not cross-examine Sergeant Marty Burroughs (“Sergeant Burroughs”). However, defendant fails to show how cross-examination of this witness, who testified to essentially the same evidence as Detective Stewart, prejudiced his defense. Again, defendant offers no explanation regarding the relevancy of the owners' identification.
    The evidence further shows, contrary to defendant's assertion, no discrepancy as to the weight of the cocaine admitted intoevidence. Deputy Daugherty testified that he weighed the cocaine while it was in the bags, and the testimony from the SBI lab showed that the cocaine was weighed outside of the bags. This explains the two different weights. Defendant does not show how defense counsel's failure to object to this testimony prejudiced his defense. Further, the record clearly shows that although defense counsel chose not to conduct a voir dire of the State's expert witness concerning a “dosage unit,” he conducted a detailed and thorough cross-examination of the testing of the evidence conducted by the expert witness.
    As to alleged errors seven and eight, defendant fails to show that defense counsel's failure to object to alleged hearsay evidence and his failure to object to the trial court's jury instructions prejudiced his defense. Defendant does not assert plain error. The record shows testimony admitted concerning a neighbor giving Sergeant Burroughs a description of the defendant was not hearsay. Sergeant Burroughs testified that the neighbor told him where defendant had gone and gave a description of him, but did not testify to what the neighbor said. Sergeant Burroughs never identified defendant based upon these statements. He identified defendant after he observed defendant running from him. Presuming this evidence was hearsay, defendant fails to show how defense counsel's failure to object prejudiced his defense.
    The evidence also shows that the trial court instructed the jury regarding misdemeanor breaking and entering once, although defendant was charged with two counts. The verdict sheet clearlylisted both charges separately requiring the jury to consider both charges separately. Defendant was found not guilty of the first count of misdemeanor breaking or entering.
    Each of defendant's alleged errors simply asks this Court to second-guess trial counsel's strategy. As previously stated, ineffective assistance of counsel claims are “not intended to promote judicial second-guessing on questions of strategy . . . .” Adams, 156 N.C. App. at 325-326, 576 S.E.2d at 383. Defendant fails to show how any of the alleged errors constitutes a deficiency in counsel or that the deficiency prejudiced his defense. Defendant's assignment of error is overruled.

    Defendant contends that the trial court erred by allowing the State's expert witness to offer his opinion of what constitutes a “dosage unit” of cocaine. As defendant did not object to this testimony, our Court is limited to a plain error analysis. State v. Frink, 158 N.C. App. 581, 587, 582 S.E.2d 617, 620 (2003); see also N.C.R. App. 10(c)(4) (2004). “'Plain error is error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.”'” Id. (quoting State v. Parks, 148 N.C. App. 600, 607, 560 S.E.2d 179, 184 (2002) (quoting State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999)).
    Defendant argues that the State's expert witness, Robert Evans (“Evans”), testified outside the scope of his expertise by defining the term “dosage unit.” Evans was qualified as an expert in thefield of forensic chemistry. Further, the record shows that the State specifically asked Evans if he was “familiar with” and had “received training” in what is considered to be a “dosage unit.” Evans replied that he had received some training but that it would be hard for anyone to say precisely what a “dosage unit” equals due to the amounts of variations in the purity of cocaine. Evans opined an approximation of “a tenth or two tenths of a gram” as a true “dosage unit” without variations in its purity. This testimony did not exceed the scope of Evans's expertise. The trial court did not err in allowing it into evidence.
    Defendant also failed to show how the admission of this evidence amounted to error so prejudicial to amount to a miscarriage of justice and to warrant a new trial. Frink, 158 N.C. App. at 587, 582 S.E.2d at 620. Sufficient evidence was presented by two witnesses that showed defendant possessed cocaine in the amount of 9.9 grams, an amount in excess of what could constitute a “personal-use amount.” This evidence was sufficient to show defendant's intent to sell and deliver cocaine and to allow the issue to be determined by the jury. Defendant's assignment of error is overruled.

    Defendant contends that the trial court erred in failing to grant his motion to dismiss. Defendant argues that insufficient evidence was presented to send the issues of intent to sell and deliver cocaine and misdemeanor breaking or entering to the jury. We disagree.
    In ruling on a motion to dismiss, the evidence must be considered in the light most favorable to the nonmoving party, and the nonmoving party is entitled to every reasonable inference, leaving any contradictions or discrepancies in the evidence to be resolved by the jury. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). A motion to dismiss should be denied if “there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is that relevant evidence which a reasonable mind would find sufficient to support a conclusion.” State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 72 (1996) (citing State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994)).
    In light of our reasoning that Evans's testimony regarding a “dosage unit” was not erroneously admitted and other sufficient evidence supports the charge of possession of cocaine with intent to sell and deliver, and taking all evidence in the light most favorable to the State, the trial court did not err in denying defendant's motion to dismiss this charge.
    Defendant argues that the misdemeanor breaking and entering charge concerning the barn located at 110 South Ridge Drive should have been dismissed due to insufficient evidence to show lack of consent. Any arguments related to the breaking or entering charge concerning the building at 208 Harrell Street are waived. N.C.R. App. P. 28(b)(6) (2004).
    The evidence presented at trial showed that someone broke intothe barn located at 110 South Ridge Drive. Although Detective Stewart could not remember the names of the owners of the barn, the evidence showed that defendant fled when he saw the police officers. Defendant was subsequently found hiding under blankets in the barn he was charged with breaking and entering into. The evidence further showed that the barn to which defendant tried to escape was surrounded by a fence. This evidence was sufficient for the jury to infer that defendant did not have permission or consent from the owners to be in the barn. Taking the evidence in the light most favorable to the State, the trial court did not err in denying defendant's motion to dismiss the charge of misdemeanor breaking and entering. Defendant's assignment of error is overruled.