State v Adams, 168 NC App 729 (04-616) 03/01/2005

Appeal by defendant from judgments entered 4 February 2004 by Judge Kimberly S. Taylor in Stanly County Superior Court. Heard in the Court of Appeals 3 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.

Haral E. Carlin for defendant-appellant.

ELMORE, Judge.

    John Lucky Adams (defendant) appeals from judgments entered consistent with jury verdicts finding him guilty of possession with intent to sell or deliver Alprazolam, sale or delivery of Clonazepam, possession with intent to sell or deliver Clonazepam and possession with intent to sell or deliver Oxycodone, and having obtained habitual felon status. The trial court sentenced defendant to two consecutive sentences of 116 to 149 months imprisonment.
    The State's evidence tended to show that on 8 January 2003, Lieutenant Jeffrey Brafford of the Stanly County Sheriff's Office and Detective Jeffery Crisco of the City of Albemarle PoliceDepartment were conducting undercover surveillance in South Albemarle as part of an interagency drug task force. Lieutenant Brafford was driving his personal vehicle down Summit Street and Detective Crisco was in an undercover vehicle near Martin Luther King Street. As Lieutenant Brafford drove passed a known drug dealer's house, he observed a white Monte Carlo parked in the driveway. Lieutenant Brafford called Detective Crisco to determine the owner of the Monte Carlo. Lieutenant Brafford testified, “[t]hey immediately told me it was John Adams. Well, actually, Lucky is the name he goes by.” Detective Crisco, however, testified on cross-examination that he did not recall speaking with Lieutenant Brafford about identifying the owner of a white Monte Carlo. When Lieutenant Brafford turned his vehicle around, he saw the Monte Carlo leaving the residence. A female was driving the vehicle and defendant was sitting in the passenger seat.
    Lieutenant Brafford followed the Monte Carlo until it stopped at 3rd Street. Defendant exited the Monte Carlo and approached the driver's side window of Lieutenant Brafford's vehicle. Defendant asked Lieutenant Brafford, “What do you want?” Lieutenant Brafford then asked defendant “what he had.” Defendant replied, “Klonopins, Legos and O.C.” Defendant further stated that the price was $2.50 per pill. Lieutenant Brafford gave defendant $10.00 in return for four pills. Lieutenant Brafford radioed Detective Crisco and informed him of the drug purchase. Detective Crisco subsequently stopped the Monte Carlo and arrested defendant for selling narcotics to a police officer. Upon a search of defendant'sperson, police found a prescription bottle, labeled “Adams, John L., Xanax”, which contained eighteen tablets of Alprazolam, two tablets of Oxycodone and one tablet of Clonazepam. Police found another prescription bottle in the Monte Carlo. Three of the four pills purchased from defendant were later identified as Clonazepam.
    On appeal, defendant contends his habitual felon indictment was invalid because one of the three convictions relied upon by the State to enhance his status to habitual felon was for possession of cocaine, which is classified as a misdemeanor under N.C. Gen. Stat. § 90-95(d)(2). In a recent decision, our Supreme Court makes it clear that N.C. Gen. Stat. § 90-95(d)(2) classifies possession of cocaine as a felony and, is therefore, sufficient to serve as an underlying felony for an habitual felon indictment. State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004). Accordingly, defendant's contention is without merit.
    In defendant's next two arguments, he contends the trial court committed plain error. Plain error arises when the error is “'so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'” 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, 74 L. Ed. 2d. 513 (1982)).
    Defendant first argues the trial court committed plain error in failing to properly admonish the jury as required by N.C. Gen. Stat. § 15A-1236(a). N.C. Gen. Stat. § 15A-1236(a) provides that at appropriate times, the trial judge “must admonish the jurorsthat it is their duty:
        (1) Not to talk among themselves about the case except in the jury room after their deliberations have begun;

        (2) Not to talk to anyone else, or to allow anyone else to talk with them or in their presence about the case and that they must report to the judge immediately the attempt of anyone to communicate with them about the case;

        (3) Not to form an opinion about the guilt or innocence of the defendant, or express any opinion about the case until they begin their deliberations;

        (4) To avoid reading, watching, or listening to accounts of the trial; and

        (5) Not to talk during trial to parties, witnesses, or counsel.

N.C. Gen. Stat. § 15A-1236(a)(2003). “Failure by the trial court to fully admonish the jury on every occasion does not of itself constitute prejudicial error.” State v. Richardson, 59 N.C. App. 558, 563-64, 297 S.E.2d 921, 925 (1982), aff'd in part, rev'd in part, 308 N.C. 470, 302 S.E.2d 799 (1983).
    Here, the trial court told potential jurors during the preliminary stages of jury selection, “you will not talk about this case during the break, during any recess among yourselves, or with anyone else.” The trial court also told potential jurors:
        And we also ask that you not try to find out anything about the case on your own that's important because we want you to decide the case based only on what you hear in the courtroom, and not what you might hear outside the courtroom or what someone else says.

After the jury was impaneled, and prior to the lunch recess, thetrial court again told jurors “not to talk about the case during the recess or at any other time until you're all back in the jury room deliberating on your verdict.”
    Defendant asserts that the trial court erred in failing to give a complete precautionary instruction at any time during the course of the trial. Defendant specifically points out that the trial court failed to give any instruction during the court recess, prior to the overnight recess or to the alternate juror during the second phase of the trial. However, defendant must establish that he suffered prejudice as a result of any failure of the trial court to admonish the jury. State v. Williams, 296 N.C. 693, 696, 252 S.E.2d 739, 742 (1979)(defendant has the burden not only to show error but also to show that the error was prejudicial). Defendant has not shown that jurors acted improperly or that deliberations were tainted and, therefore, has failed to meet his burden. Accordingly, this assignment of error is overruled.
    Defendant finally argues the trial court committed plain error by allowing Detective Brafford to testify to the following two statements: (1) that he observed defendant's vehicle parked at a known drug dealer's house, and (2) “[t]hey immediately told me it was John Adams.” Defendant asserts that the statements were inadmissable hearsay pursuant to Rules 801 and 802 of the North Carolina Rules of Evidence. Even if this testimony was admitted as inadmissible hearsay evidence, it would have to rise to the level of plain error to warrant a reversal, and thus the burden is on defendant to establish that without the error a different resultprobably would have been reached. See State v. Bellamy, 159 N.C. App. 143, 147, 582 S.E.2d 663, 667, cert. denied, 357 N.C. 579, 589 S.E.2d 130 (2003). Given the overwhelming evidence of guilt in this case, based on the unequivocal and detailed testimony of Lieutenant Brafford and Detective Crisco that defendant sold Lieutenant Brafford four pills and was subsequently caught with controlled substances on his person, defendant has failed to meet this burden. Thus, admission of the statements was not plain error.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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