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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TONY EDWARD ENGLISH
Filed: 5 July 2005
1. Sentencing_-habitual felon--prior record level
Defendant's sentencing for sale, delivery, and possession with intent to sell or deliver a
controlled substance which was enhanced by his status as an habitual felon is remanded for
resentencing, because: (1) a prior record level worksheet standing alone does not meet the
State's burden for establishing prior convictions under N.C.G.S. § 15A-1340.14(f); and (2) the
State did not establish that defendant stipulated to the prior convictions at issue nor has it
presented records pursuant to N.C.G.S. § 15A-1340.14(f) to prove the existence of the prior
2. Constitutional Law--right of confrontation--laboratory report--stipulation
The trial court did not violate defendant's Sixth Amendment right of confrontation in a
sale, delivery, and possession with intent to sell or deliver a controlled substance case by
permitting the State to read into evidence a laboratory report identifying the substance purchased
by an officer as cocaine without the preparer of the report being available for cross-examination,
because defendant explicitly waived his right to cross-examine the report's preparer when: (1)
defense counsel stipulated to the laboratory report at the beginning of defendant's trial and
affirmed that no further authentication or testimony was required; and (2) the trial court
confirmed defendant's stipulation through extensive questioning of defendant and further
showed that defendant understood the nature of the question being put to him.
3. Evidence_-hearsay--neighborhood had reputation for drug use and drug sales
The trial court did not err in a sale, delivery, and possession with intent to sell or deliver
a controlled substance case by allowing an officer to testify that the neighborhood in which
defendant was arrested had a reputation as a heavy, heavy area for drug use and drug sales,
because: (1) the testimony was prompted by a question by the State as to why the officer was in
the neighborhood; (2) the statement was offered to explain why the officer subsequently solicited
drugs from a pedestrian in that neighborhood, and not as an assertion that the neighborhood was,
in fact, known for its heavy drug traffic; and (3) even if the evidence was considered to be
inadmissible hearsay, its admission did not require a new trial due to the overwhelming evidence
of defendant's guilt including an officer's testimony about defendant's role in the drug sale, the
laboratory analysis proving the substance was crack cocaine, and defendant's possession of a
twenty dollar bill.
Judge STEELMAN concurring.
Appeal by defendant from judgment entered 5 November 2003 by
Judge Timothy S. Kincaid in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 9 March 2005.
Attorney General Roy A. Cooper, by Assistant Attorney GeneralChristopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
Tony Edward English (defendant) was convicted on 5 November
2003 of sale, delivery, and possession with intent to sell or
deliver a controlled substance. Defendant admitted he had attained
habitual felon status. The evidence at trial tended to show that
Officer Harrland McKinney (Officer McKinney) was an undercover
officer with the Street Drug Interdiction Unit of the Charlotte
Mecklenburg Police Department on the night of 10 April 2003.
Officer McKinney saw Sean Williams (Williams), a person Officer
McKinney knew had previously been involved with drugs, standing on
a street corner. Officer McKinney approached Williams and asked to
buy "a twenty," which Officer McKinney testified was slang for a
twenty dollar rock of crack cocaine. Williams initially offered to
get into Officer McKinney's vehicle to "take [Officer McKinney] to
get it[,]" but Officer McKinney refused. Williams then told him to
return ten minutes later.
When Officer McKinney returned, defendant was standing on the
corner with Williams. Defendant was holding a clear plastic bag.
Williams reached into the bag, pulled out a rock of crack cocaine,
and walked over to Officer McKinney's vehicle. Officer McKinney
inspected the rock briefly. Satisfied that the rock was crack
cocaine, Officer McKinney gave Williams a twenty dollar bill.
Williams ran over to defendant and handed defendant the twentydollar bill. Officer McKinney drove away and immediately called in
other officers to arrest Williams and defendant.
Based on Officer McKinney's description, Officer Shawn Blee
(Officer Blee) discovered defendant on a nearby street. Defendant
fled and Officer Blee gave chase. A few minutes later, Office Blee
located defendant in the backyard of a residence. Defendant
appeared to be chewing something, which Officer Blee ordered him to
spit out. The item defendant had been chewing was a twenty-dollar
bill. No drugs were found on defendant. The rock sold to Officer
McKinney was later determined by laboratory analysis to be .10
grams of cocaine.
Defendant was convicted of all charges and he admitted he was
an habitual felon. He was sentenced to a minimum term of 120
months and a maximum term of 153 months. Defendant appeals.
 Defendant first argues that his case should be remanded
for resentencing. Defendant specifically contends that the prior
record level determined by the trial court is improper under N.C.
Gen. Stat. § 15A-1340.14. We agree.
A trial court must "determine the prior record level for the
offender pursuant to [N.C.]G.S. [§] 15A-1340.14" before imposing
sentence. N.C. Gen. Stat. § 15A-1340.13(b) (2003). The minimum
sentence imposed must be "within the range specified for the class
of offense and prior record level[.]" Id. As an habitual
offender, it was determined that defendant had eight prior record
points and a prior record level III, for sentencing under N.C.G.S.§ 15A-1340.14.
N.C. Gen. Stat. § 15A-1340.14(f) (2003) states that prior
convictions may be proved by:
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
"The State bears the burden of proving, by a preponderance of the
evidence, that a prior conviction exists[.]" N.C.G.S. § 15A-
1340.14(f). During sentencing, the trial court was informed that
the files concerning some of defendant's previous offenses had been
destroyed, and thus no proof of these offenses could be offered.
To meet its burden, the State would have had to either obtain a
stipulation from defendant or prove the convictions by "[a]ny other
method found by the court to be reliable." Id.
The State presented a prior record level worksheet that listed
defendant's prior convictions by class of felony, classifying
defendant as a record level III offender. Neither defendant nor
his defense counsel stipulated to the contents of the prior record
worksheet. Rather, the record shows that defense counsel expressly
declined to stipulate to the worksheet and renewed defendant's
motion to suppress two of the listed convictions.
Our Court has repeatedly held that a prior record level
worksheet, standing alone, does not meet the State's burden forestablishing prior convictions under N.C.G.S. § 15A-1340.14(f).
See State v. Johnson, 164 N.C. App. 1, 23, 595 S.E.2d 176, 189,
disc. review denied, 359 N.C. 194, 607 S.E.2d 659 (2004) ("It has
been repeatedly held that the submission of a worksheet by the
State is insufficient to satisfy the State's burden under this
statute[.]"); State v. Riley, 159 N.C. App. 546, 557, 583 S.E.2d
379, 387 (2003) ("A statement by the State that an offender has
seven points, and thus is a record level III, if only supported by
a prior record level worksheet, is not sufficient to meet the
catchall provision found in N.C.G.S. § 15A-1340.14(f)(4), even if
uncontested by defendant."); State v. Bartley, 156 N.C. App. 490,
502, 577 S.E.2d 319, 326 (2003) ("An unsupported statement by the
State that an offender has eleven points, and thus is a record
level IV, even if uncontested, does not rise to the level
sufficient to meet the catchall provision found in N.C.G.S. § 15A-
1340.14(f)(4)."); State v. Eubanks, 151 N.C. App. 499, 505, 565
S.E.2d 738, 742 (2002) ("There is no question that a worksheet,
prepared and submitted by the State, purporting to list a
defendant's prior convictions is, without more, insufficient to
satisfy the State's burden in establishing proof of prior
The State has not established that defendant stipulated to the
prior convictions at issue, nor has it presented records pursuant
to N.C.G.S. § 15A-1340.14(f) to prove the existence of the prior
convictions. Therefore, the State did not meet its evidentiary
burden under the statute. See State v. Spellman, 167 N.C. App.374, 392-93, 605 S.E.2d 696, 709 (2004) (remanding for resentencing
because record was bare of any evidence or stipulation other than
a worksheet), disc. review denied, 359 N.C. 325, 611 S.E.2d 845.
Therefore, we remand for resentencing.
Defendant makes two additional arguments for resentencing.
Specifically, defendant argues that the trial court erred in
imposing an aggravated sentence when the aggravating factor on
which the sentence was based required that defendant join "with
more than one other person in committing the offense[,]" and
defendant joined with only one other person. N.C. Gen. Stat. §
15A-1340.16(d)(2) (2003) (emphasis added). Defendant further
argues that, for the trial court to use this aggravating factor for
sentencing purposes, it must have first submitted the issue to the
jury for the jury to find the aggravating factor beyond a
reasonable doubt. See Blakely v. Washington, 542 U.S. ___, 159 L.
Ed. 2d 403 (2004). However, because we remand for resentencing on
other grounds, we do not reach the merits of these arguments.
Defendant next argues that he is entitled to a new trial
because the trial court erred in admitting evidence.
 First, defendant argues that the trial court erred by
permitting the State to read into evidence a laboratory report
identifying the substance purchased by Officer McKinney as cocaine
without the preparer of the report being available for cross-
examination. The laboratory report confirmed that the substancepurchased by Officer McKinney was .10 grams of cocaine. Officer
McKinney, rather than the preparer of the report, read this report
into evidence. Defendant argues that under the United States
Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 158
L. Ed. 2d 177 (2004), such reading violated defendant's Sixth
Amendment right to confront the witnesses against him.
Specifically, defendant argues that the laboratory report was
testimonial and improperly admitted into evidence because the report
was not presented by its preparer, who was not deemed unavailable
by the trial court, and because defendant did not have the
opportunity to cross-examine the report's preparer. See Crawford,
541 U.S. at 68, 158 L. Ed. 2d at 203 ("Where testimonial evidence
is at issue, . . . the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
Our Court has held that, in evaluating whether a defendant's
right to confrontation has been violated, we must determine: "(1)
whether the evidence admitted was testimonial in nature; (2) whether
the trial court properly ruled the declarant was unavailable; and
(3) whether defendant had an opportunity to cross-examine the
declarant." State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213,
217, disc. review denied, 358 N.C. 734, 601 S.E.2d 866 (2004).
However, we need not employ this analysis in the case before us
because defendant explicitly waived his right to cross-examine the
Our Supreme Court has held that "the constitutional right ofan accused to be confronted by the witness against him is a personal
privilege, which [the accused] may waive even in a capital case."
State v. Moore, 275 N.C. 198, 210, 166 S.E.2d 652, 660 (1969); see
also State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246
(1985) ("The constitutional right of an accused to be confronted by
the witnesses against him is a personal privilege which he may waive
expressly or by a failure to assert it in apt time even in a capital
case."); State v. Hutchins, 303 N.C. 321, 341-42, 279 S.E.2d 788,
801 (1981) ("[A] defendant may waive the benefit of constitutional
guarantees by express consent, failure to assert it in apt time, or
by conduct inconsistent with a purpose to insist upon it.").
In the present case, defense counsel offered to stipulate to
the laboratory report at the beginning of defendant's trial. The
trial court asked whether defense counsel was "stipulating that the
report may be received into evidence, without further authentication
or further testimony," and defense counsel answered in the
affirmative. The trial court then confirmed defendant's stipulation
through extensive questioning of defendant.
THE COURT: . . . You have the right to a trial,
by a jury. And in that trial, by jury, you
have the right to require that the state prove
each and every element of the offenses beyond
a reasonable doubt.
One of the . . . charges . . . is that the
substance [sold to Officer McKinney] was an
illegal drug. And, you can require that the
state prove that it was . . . an illegal drug.
They may do that in one of several ways, such
as calling laboratory witnesses and that kind
Your attorney has indicated that, on yourbehalf, she is willing to stipulate that the
lab report that she's received, in the
discovery, is accurate; and, that the substance
Did you understand her to say that?
[Defendant]: Yes, sir.
THE COURT: And, are you agreeing that that
stipulation is accurate and may be received by
[Defendant]: Yes, sir.
THE COURT: And, do you understand, again, that
you can require the state to prove this; that
you don't have to stipulate to it?
[Defendant]: Yes, sir.
THE COURT: Now, you, making this stipulation,
voluntarily, without any threat or coercion
[Defendant]: Yes, sir.
THE COURT: All right. Do you have any
questions about it, at all?
[Defendant]: No, sir.
THE COURT: And, do you understand that this
means that the state wouldn't have to call
their chemist or laboratory person to come in
and testify as to what the substance was; or,
whether anything is in the report. That the
jury will get to see the report, without that
having to happen?
[Defendant]: Yes, sir.
THE COURT: And, you are agreeing that that's
[Defendant]: Yes, sir.
THE COURT: Very well. Thank you, sir.
Then, let the record show that the defendant
has, upon informed choice, exercise of free
will, voluntarily agreed and stipulated thatthe laboratory report identifying the reported
substance as cocaine, shall be received,
without further authentification or, without
requirement of expert testimony or otherwise.
The trial court's thorough inquiry ensured that defendant not only
stipulated to the contents of the laboratory report but also
understood the nature of the question being put to him. Defendant
clearly waived his Sixth Amendment right to confront the preparer
of the laboratory report. We overrule this assignment of error.
 Defendant next argues that the trial court erred by
allowing Officer McKinney to testify that the neighborhood in which
defendant was arrested had a reputation as a "heavy, heavy area for
drug use and drug sales." Our Court has held that "[i]n North
Carolina, the 'general rule is that in a criminal prosecution
evidence of the reputation of a place or neighborhood is ordinarily
inadmissible hearsay.'" State v. Williams, 164 N.C. App. 638, 639,
596 S.E.2d 313, 314 (2004) (quoting State v. Weldon, 314 N.C. 401,
408, 333 S.E.2d 701, 705 (1985)). For the reasons below, we agree
with the State's arguments that this general rule does not mandate
that defendant receive a new trial.
First, "[i]f a statement is offered for any purpose other than
that of proving the truth of the matter asserted, it is not
objectionable as hearsay." State v. White
, 298 N.C. 430, 437, 259
S.E.2d 281, 286 (1979) (internal citations omitted); see also State
, 170 N.C. App. 632, ___ S.E.2d ___ (2005) (holding that
statements made for purposes of corroboration rather than truth of
the matter asserted are admissible under Crawford v. Washington
). In the instant case, Officer McKinney's testimony regarding the
neighborhood's reputation was prompted by a question by the State
as to why Officer McKinney was in the neighborhood. This statement
was offered to explain why Officer McKinney subsequently solicited
drugs from a pedestrian in that neighborhood, and not as an
assertion that the neighborhood was, in fact, known for its heavy
drug traffic. Thus, the statement was not hearsay and was
Second, even were we to consider the statement to be
inadmissible hearsay, "[e]rroneous admission of evidence may be
harmless where there is an abundance of other competent evidence to
support the state's primary contentions . . . or where there is
overwhelming evidence of [the] defendant's guilt." Weldon
, 314 N.C.
at 411, 333 S.E.2d at 707; see also State v. Stevenson
, 136 N.C.
App. 235, 241, 523 S.E.2d 734, 737 (1999), disc. review denied
N.C. 368, 543 S.E.2d 144 (2000) (citations omitted). In Williams
the defendant was in possession of what appeared to be cocaine but
was in fact Goody's Headache Powder. A police officer testified
that the incident took place in a "neighborhood known as an 'open
air market for drugs.'" Williams
164 N.C. App. at 639, 596 S.E.2d
at 314. Our Court considered the other evidence introduced during
the trial and concluded that "there is a reasonable possibility
that, had the erroneous reputation evidence not been admitted, the
jury would have reached a different result at trial." Id.
596 S.E.2d at 319. We therefore remanded for a new trial. Id.
However, in Weldon
, a police officer found six grams of heroin inthe defendant's house and testified at trial that the house "had a
reputation as a place where illegal drugs could be bought or sold."
314 N.C. at 402, 333 S.E.2d at 702. Our Supreme Court found
that the trial court erred in admitting this testimony but concluded
that its admission did not require a new trial due to the
overwhelming evidence of the defendant's guilt (specifically, heroin
was found in the defendant's house). Id.
at 411, 333 S.E.2d at 707-
In the present case, the other evidence of defendant's guilt,
including Officer McKinney's testimony about defendant's role in the
drug sale, the laboratory analysis proving the substance was crack
cocaine, and defendant's possession of a twenty dollar bill, is
sufficiently overwhelming that there is not a reasonable possibility
that exclusion of the reputation testimony could have resulted in
a different verdict. Defendant's arguments for a new trial are
No error; remand for resentencing.
Judge BRYANT concurs.
Judge STEELMAN concurs with a separate opinion.
STEELMAN, Judge concurring.
I fully concur with the majority opinion in this case, but
write separately because I believe defendant's appellate counsel
should be sanctioned for presenting the argument discussed in
section IIA of the opinion.
Appellate counsel has a duty to zealously and diligentlyrepresent his or her client. This is especially true when that
client is a criminal defendant facing incarceration because of a
conviction in the trial court. However, there are limits to zealous
representation. Rule 34(a)(1) of the Rules of Appellate Procedure
states that counsel may be sanctioned when the appeal [is] not
well grounded in fact and warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing
law. N.C. R. App. P. 34(a)(1) (2005). These strictures apply to
each of the arguments made within an appellate brief.
In defendant's sixth assignment of error he asserts as error:
The Trial Court's failure to intervene ex mero motu when State's
witness Officer McKinney read into evidence, and the State later
introduced as Exhibit No. 4, the chemist's report regarding the
analysis of the substance . . . . This assignment of error
concludes by stating, To the extent this error is not otherwise
preserved, defendant asserts plain error.
Appellant's counsel proceeds to argue for eight pages in the
brief that the trial court's error violated defendant's
constitutional right to confront a witness under the rationale of
Crawford v. Washington, 541 U.S. 36, 61, 158 L. Ed. 2d 177, 199,
(2004). Although defendant asserts plain error, appellant counsel
fails to argue it in the brief. The argument ignores facts as set
forth in the majority's opinion, which reveal that not only did
defendant's trial counsel stipulate that the laboratory report could
be received into evidence, but the trial judge had an extensive
conversation with defendant to make certain he understood theramifications of the stipulation. The trial judge went above and
beyond what he was required to do to insure defendant's
constitutional rights were fully protected. However, appellant's
counsel completely ignores defendant's stipulation that the report
may be received into evidence without further authentication or
further testimony. Appellate counsel never attempts to argue that
the stipulation was somehow invalid, nor that trial counsel was
ineffective in any manner.
The role of the appellate courts is to review and correct
errors which actually occurred in the trial division. The function
of an appellant's brief is to clearly and concisely bring those
errors to the appellate court's attention, together with controlling
authorities. It is not the function of an appellate brief to
discuss intellectual and academic points of law that do not arise
from the facts of the case being discussed.
I do not undertake the writing of the concurrence lightly. It
was not my intent to discourage criminal appellate counsel from
zealously representing their clients, but rather to emphasize that
there are limits to what is acceptable conduct by counsel, even in
There was no basis in fact or law for the arguments asserted
by appellate counsel for defendant pertaining to his sixth
assignment of error. For these reasons, I believe this Court should
impose sanctions upon counsel for the appellant.
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